CREATIVE VISTAS, INC. IVIEW DIGITAL VIDEO SOLUTIONS INC. IVIEW HOLDING CORP. LAURUS MASTER FUND, LTD. SECURITIES PURCHASE AGREEMENT February 13, 2006
CREATIVE
VISTAS, INC.
IVIEW
DIGITAL VIDEO SOLUTIONS INC.
IVIEW
HOLDING CORP.
LAURUS
MASTER FUND, LTD.
February
13, 2006
TABLE
OF CONTENTS
Page
No.
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1. Agreement
to Issue and Acquire.
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2
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2. Fees,
Option and Warrant.
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2
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3. Closing,
Delivery and Payment.
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3
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3.1
Closing.
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3
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3.2
Delivery.
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3
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4. Representations
and Warranties of the Company.
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3
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4.1
Organization,
Good Standing and Qualification.
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3
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4.2
Subsidiaries.
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5
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4.3
Capitalization;
Voting Rights.
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5
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4.4
Authorization;
Binding Obligations.
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6
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4.5
Liabilities.
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7
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4.6
Agreements;
Action.
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7
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4.7
Obligations
to Related Parties.
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8
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4.8
Changes.
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9
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4.9
Title
to Properties and Assets; Liens, Etc.
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11
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4.10 Intellectual
Property.
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11
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4.11 Compliance
with Other Instruments.
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12
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4.12 Litigation.
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12
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4.13 Tax
Returns and Payments.
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13
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4.14 Employees.
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13
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4.15 Registration
Rights and Voting Rights.
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14
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4.16 Compliance
with Laws; Permits.
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14
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4.17 Environmental
and Safety Laws.
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15
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4.18 Valid
Offering.
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15
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4.19 Full
Disclosure.
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15
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4.20 Insurance.
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16
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4.21 Financial
Statements.
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16
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4.22 Dilution.
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16
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4.23 Patriot
Act.
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16
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4.24 ERISA.
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17
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4.25 Bank
Accounts.
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18
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5. Representations
and Warranties of the Purchaser.
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18
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5.1
No
Shorting.
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18
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5.2
Requisite
Power and Authority.
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18
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5.3
Investment
Representations.
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18
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5.4
Purchaser
Bears Economic Risk.
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19
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5.5
Acquisition
for Own Account.
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20
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5.6
Purchaser
Can Protect Its Interest.
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20
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5.7
Legends.
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20
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6. Covenants
of the Company.
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21
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6.1
Stop-Orders.
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21
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6.2
Use
of Funds.
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22
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6.3
Reporting
Requirements.
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22
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6.4
Access
to Facilities.
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23
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6.5
Taxes.
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23
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6.6
Insurance.
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24
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6.7
Intellectual
Property.
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26
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6.8
Properties.
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26
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6.9
Confidentiality.
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26
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6.10 Required
Approvals.
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27
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6.11 Opinion.
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28
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6.12 Margin
Stock.
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28
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6.13 Financing
Right of First Refusal.
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28
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6.14 Account
Agreements.
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29
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7. Covenants
of the Purchaser.
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30
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7.1
Confidentiality.
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30
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7.2
Non-Public
Information.
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30
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7.3
Limitation
on Acquisition of Common Stock of the Company.
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30
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8. Covenants
of the Company and Purchaser Regarding Indemnification.
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31
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8.1
Company
Indemnification.
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31
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8.2
Purchaser’s
Indemnification.
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31
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8.3
Offering
Restrictions.
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31
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9. Miscellaneous.
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32
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9.1
Governing
Law.
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32
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9.2
Survival.
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32
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9.3
Successors.
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32
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9.4
Entire
Agreement; Maximum Interest.
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33
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9.5
Severability.
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33
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9.6
Amendment
and Waiver.
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33
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9.7
Delays
or Omissions.
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33
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9.8
Notices.
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34
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9.9
Attorneys’
Fees.
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35
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9.10 Titles
and Subtitles.
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35
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9.11 Facsimile
Signatures; Counterparts.
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35
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9.12 Broker’s
Fees.
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35
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9.13 Construction.
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36
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9.14 Currency
Indemnity.
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36
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Exhibit
“A” FORM OF NOTE
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38
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Exhibit
“B” FORM OF IVIEW NOTE
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39
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Exhibit
“C” FORM OF OPTION
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40
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Exhibit
“D” FORM OF COMPANY WARRANT
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41
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Exhibit
“E” CASH COLLATERAL DEPOSIT LETTER
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42
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Exhibit
“F” FORM OF ESCROW AGREEMENT
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43
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Exhibit
“G” FORM OF OPINION
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44
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Exhibit
“H” FORM OF TAX OPINION
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45
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ii
THIS
SECURITIES PURCHASE AGREEMENT
(this
“Agreement”)
is
made and entered into as of February 13,
2006,
by and among CREATIVE
VISTAS, INC.
an
Arizona Corporation, (the “Company”),
IVIEW
DIGITAL VIDEO SOLUTIONS INC.,
a
Canadian Corporation (“Iview”),
IVIEW
HOLDING CORP.,
a
Delaware Corporation (“Iview
Parent”)
and
LAURUS
MASTER FUND, LTD.,
a
Cayman Islands company (the “Purchaser”).
RECITALS:
WHEREAS,
the
Company has authorized the sale to the Purchaser of a Secured Term Note in
the
aggregate principal amount of Eight Million Two Hundred and Fifty Thousand
Dollars in lawful money of the United States (USD$8,250,000) (as amended,
modified or supplemented from time to time, the “Company
Note”);
WHEREAS,
Iview
has authorized the sale to the Purchaser of a Secured Term Note in the aggregate
principal amount of Two Million Dollars in lawful money of the United
States (USD$2,000,000) (as
amended, modified or supplemented from time to time, the “Iview
Note”);
WHEREAS,
Iview
Parent wishes to issue an option (as amended, modified or supplemented from
time
to time, the “Iview Option”)
to the
Purchaser to purchase up to 20% of the common stock of Iview Parent (subject
to
adjustment as set forth therein), in connection with Purchaser’s purchase of the
Iview Note;
WHEREAS,
the
Company wishes to issue a warrant (as amended, modified or supplemented from
time to time (the “Company
Warrant”)
to the
Purchaser to purchase up to 7.5% of common stock of the Company.
WHEREAS,
Purchaser desires to acquire the Company Note, the Iview Note, the Company
Warrant and the Iview Option on the terms and conditions set forth herein;
and
WHEREAS,
the
Company desires to issue the Company Note and sell the Company Warrant, Iview
desires to issue the Iview Note and Iview Parent desires to issue and sell
the
Iview Option to Purchaser on the terms and conditions set forth
herein.
AGREEMENT:
NOW,
THEREFORE,
in
consideration of the foregoing recitals and the mutual promises,
representations, warranties and covenants hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties hereto agree as follows:
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1.
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Agreement
to Issue and Acquire.
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Pursuant
to the terms and conditions set forth in this Agreement, on the Closing Date
(as
defined in Section 0),
(i)
the Company shall issue to the Purchaser, and the Purchaser shall acquire
from
the Company the Company Note; and (ii) Iview shall issue to the Purchaser,
and
the Purchaser shall acquire from Iview the Iview Note. The offer and issuance
of
the Company Note and the Iview Note purchased on the Closing Date shall be
known
as the “Offering”.
A form
of the Company Note is annexed hereto as Exhibit “A” and a form of the Iview
Note is annexed hereto as Exhibit ”B”. The Company Note will mature on the
Maturity Date (as defined in the Company Note). The Iview Note will mature
on
the Maturity Date (as defined in the Iview Note). Collectively, the Company
Note, the Iview Note, the Iview Option and the Company Warrant are referred
to
as the “Securities”.
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2.
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Fees,
Option and Warrant.
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On
the
Closing Date:
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(a)
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Iview
Parent will issue and deliver to the Purchaser the Iview Option
and
Company will issue and deliver to the Purchaser, the Company Warrant.
The
Iview Option and the Company Warrant must be delivered on the Closing
Date. A form of the Iview Option is annexed hereto as Exhibit C. A
form of the Company Warrant is annexed hereto as Exhibit D. All
the
representations, covenants, warranties, undertakings, and indemnification,
and other rights made or granted to or for the benefit of the Purchaser
by
Iview Parent are hereby also made and granted in respect of the
Iview
Option and shares of Iview Parent’s Common Stock issuable upon exercise of
the Iview Option (the “Iview
Option Shares”).
All the representations, covenants, warranties, undertakings and
indemnification and other rights made or granted to or for the
benefit of
the Purchaser by the Company are hereby also made and granted in
respect
of the Company Warrant and the Company’s Common Stock issueable upon
exercise of the Company Warrant (the “Company
Warrant Shares”
and together with the Iview Option Shares, the “Shares”).
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(b)
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Subject
to the terms of Section 2(d)
below, the Company shall pay to Laurus Capital Management, LLC,
the
manager of the Purchaser, a closing payment in an amount equal
to
USD$87,500. The foregoing fee is referred to herein as the “Closing
Payment”.
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(c)
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The
Company shall reimburse the Purchaser for its reasonable expenses
(including legal fees and expenses) incurred in connection with
the
preparation and negotiation of this Agreement and the Related Agreements
(as hereinafter defined), and expenses incurred in connection with
the
Purchaser’s due diligence review of the Company and its Subsidiaries (as
defined in Section 6.6)
and all related matters. Amounts required to be paid under this
Section 2(c)
will be paid on the Closing Date and shall be USD$5,000 (plus any
amounts
charged by the Purchaser’s local Canadian counsel and/or related to
registration and filing expenses in connection with the granting
and
perfection of the Purchaser’s security interests) for such expenses
referred to in this Section (c).
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2 -
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(d)
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The
Closing Payment and the expenses referred to in the preceding
clause (c)
shall be paid at Closing (as defined below) out of funds held pursuant
to
the Escrow Agreement (as defined below) and a disbursement letter
(the
“Disbursement
Letter”).
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(e)
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The
Company, Iview Parent, Iview and each of their respective Subsidiaries
will execute and deliver the Cash Collateral Deposit Letter. A
form of the
Cash Collateral Deposit Letter is attached hereto as Exhibit
E.
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3.
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Closing,
Delivery and Payment.
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3.1
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Closing.
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Subject
to the terms and conditions herein, the closing of the transactions contemplated
hereby (the “Closing”),
shall
take place on the date hereof, at such time or place as the Company and
Purchaser may mutually agree (such date is hereinafter referred to as the
“Closing
Date”).
Each
of the Company and Iview acknowledges that the Purchaser’s obligation to fund
the purchase price for the Company Note and the Iview Note is conditioned
upon
the Company’s and Iview’s satisfaction of the items and matters contained in the
closing checklist to be supplied by the Purchaser to the Company and
Iview.
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3.2
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Delivery.
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Pursuant
to the Escrow Agreement, at the Closing on the Closing Date, the Company,
Iview
and Iview Parent will deliver to the Purchaser, among other things, the Company
Note, the Iview Note, the Iview Option and the Company Warrant and the Purchaser
will deliver to the Company, among other things, the amounts set forth in
the
Disbursement Letter, by certified funds or wire transfer.
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4.
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Representations
and Warranties of the Company.
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Each
of
the Company, Iview and Iview Parent hereby represents and warrants to the
Purchaser as follows (it being acknowledged and agreed that to the extent
applicable thereto, each representation and warranty made hereunder shall
be
deemed to make reference to the transactions contemplated by this Agreement
and
all Related Agreements).
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4.1
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Organization,
Good Standing and
Qualification.
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3 -
Each
of
the Company, Iview and Iview Parent, and each of their respective Subsidiaries
is a corporation, partnership or limited liability company, as the case may
be,
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization. Each of the Company, Iview, Iview Parent, and
each
of their respective Subsidiaries has the power (corporate and otherwise)
and
authority to own and operate its properties and assets, to execute and deliver
(i) this Agreement, (ii) the Company Note, the Iview Note, the Iview Option
and
the Company Warrant, (iii) the Escrow Agreement dated as of the date hereof
among the Company, Iview, the Purchaser and the escrow agent referred to
therein, substantially in the form of Exhibit E hereto (as amended, modified
or
supplemented from time to time, the “Escrow
Agreement”),
(iv)
the Amended and Restated Guaranty dated the date hereof executed by the Company,
Iview, Cancable Holding Corp., (“Cancable
Holding”),
Cancable, Inc., Cancable Inc., Creative Vistas Acquisition Corp. (“Creative
Vistas Acquisition”),
A.C. Technical Systems Ltd. (“A.C.
Ltd.”)
and
Iview Parent in favour of the Purchaser, (the “Amended
and Restated Guaranty”),
(the
Company, Cancable Holding, Cancable, Inc., Cancable Inc., Creative Vistas
Acquisition, A.C. Ltd., Iview Parent and Iview (collectively, the “Loan
Parties”),
(v)
the Joinder and Confirmation of Security dated the date hereof granted by
the
Loan Parties in favour of the Purchaser (the “2006
Joinder”),
(vi)
the Amended and Restated Guaranty dated as of the date hereof granted by
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”)
in
favour of the Purchaser (the “▇▇▇▇▇▇▇ Amended
and Restated Guaranty”),
(vii)
the Joinder and Confirmation of Security dated the date hereof granted by
▇▇▇▇▇▇▇ in favour of Purchaser (the “▇▇▇▇▇▇▇
Joinder”),
(viii) all other agreements related to this Agreement, the Company Note and
the
Iview Note and referred to herein (the preceding clauses (ii) through (viii),
and (ix) the Master Security Agreement dated as of September 30, 2004 granted
by
the Company, A.C. Ltd., A.C. Technical Acquisition Corp. (now Creative Vistas
Acquisition) and Cancable Holding, Iview, Cancable Inc., and Cancable, Inc.
(pursuant to the Joinder and Confirmation of Security dated as of December
31,
2005 between Cancable Holding, Iview, Cancable Inc., Cancable, Inc., Company,
Creative Vistas Acquisition, A.C. Ltd. and ▇▇▇▇▇▇▇ (the “2005
Joinder”)
in
favour of the Purchaser, (x) the Subsidiary Guaranty dated as of September
30,
2004 granted by A.C. Ltd., A.C. Technical Acquisition Corp. (now Creative
Vistas
Acquisition) and Cancable Holding, Iview, Cancable Inc. and Cancable, Inc.
(pursuant to the 2005 Joinder) in favour of the Purchaser, (xi) the Guaranty
dated as of September 30, 2004 granted by ▇▇▇▇▇▇▇ in favour of the Purchaser,
(xii) the Share Pledge Agreement dated as of September 30, 2004 granted by
A.C.
Ltd., A.C. Technical Acquisition Corp. (now Creative Vistas Acquisition)
and
Cancable Holding, Iview, Cancable Inc., and Cancable, Inc. (pursuant to the
2005
Joinder) in favour of the Purchaser, (xiii) the Share Pledge Agreement dated
as
of September 30, 2004 granted by Company and Cancable Holding, Iview, Cancable
Inc., and Cancable, Inc. (pursuant to the 2005 Joinder) in favour the Purchaser,
(xiv) the Debenture dated as of September 30, 2004 granted by A.C. Ltd. in
favour of the Purchaser; (xv) the Securities Purchase Agreement dated as
of
December 31, 2005 between Cancable Inc., Cancable Holding and the Purchaser,
(xvi) the Guaranty dated as of December 31, 2005 granted by Company, Cancable
Holding, Cancable, Inc., Creative Vistas Acquisition, A.C. Ltd. and Iview
in
favour of the Purchaser, (xvii) the Master Security Agreement dated as of
December 31, 2005 granted by Company, Iview, Cancable Inc., Cancable, Inc.,
Cancable Holding, A.C. Ltd. and Creative Vistas Acquisition in favour of
the
Purchaser (the “2005
Master Security Agreement”),
(xviii) the Pledge Agreement dated as of December 31, 2005 granted by Company,
Creative Vistas Acquisition Corp., Cancable Inc. and Cancable Holding in
favour
of the Purchaser (the “2005
Stock Pledge Agreement”);
and
(xiv) the 2005 Joinder, and (xx) the Debenture dated as of December 31, 2005
granted by A.C. Ltd. in favour of the Purchaser, collectively, the “Related
Agreements”),
to
issue and sell the Company Note and the Iview Note, to issue and sell the
Iview
Option and the Company Warrant and the Shares, and to carry out the provisions
of this Agreement and the Related Agreements and to carry on its business
as
presently conducted. Each of the Company, Iview and Iview Parent, and each
of
their respective Subsidiaries is duly qualified and is authorized to do business
and is in good standing as a foreign corporation, partnership or limited
liability company, as the case may be, in all jurisdictions in which the
nature
of its activities and of its properties (both owned and leased) makes such
qualification necessary, except for those jurisdictions in which failure
to do
so has not, or could not reasonably be expected to have, individually or
in the
aggregate, a material adverse effect on the business, assets, liabilities,
condition (financial or otherwise), properties, operations or prospects of
the
Company, Iview and Iview Parent, and their respective Subsidiaries, taken
as a
whole (a “Material
Adverse Effect”).
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4 -
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4.2
|
Subsidiaries.
|
Each
direct and indirect Subsidiary of each of the Company, Iview and Iview Parent,
the direct owner of such Subsidiary and its percentage ownership thereof,
is set
forth on Schedule 4.2. For the purpose of this Agreement, a “Subsidiary”
of
any
person or entity means (i) a corporation or other entity whose shares of
stock
or other ownership interests having ordinary voting power (other than stock
or
other ownership interests having such power only by reason of the happening
of a
contingency) to elect a majority of the directors of such corporation, or
other
persons or entities performing similar functions for such person or entity,
are
owned, directly or indirectly, by such person or entity or (ii) a corporation
or
other entity in which such person or entity owns, directly or indirectly,
more
than 50% of the equity interests at such time.
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4.3
|
Capitalization;
Voting Rights.
|
|
(a)
|
The
authorized capital stock of the Company as of the date hereof consists
of
100,000,000 shares of Common Stock, no par value of which 32,146,716
shares are issued and outstanding. The authorized capital stock
of Iview
as of the date hereof consists of an unlimited number of Common
Shares, of
which 100 shares are issued and outstanding. The authorized capital
stock
of Iview Parent consists of 1,000 shares of Common Stock, $0.01
par value
per share, of which 80 shares of Common Stock are issued and outstanding.
The authorized, issued and outstanding capital stock of each Subsidiary
of
the Company, Iview and of Iview Parent is set forth on Schedule
4.3(a).
|
|
(b)
|
Except
as disclosed on Schedule 4.3(b), other than: (i) the shares reserved
for
issuance under the Company’s stock option plans; (ii) shares which may be
granted pursuant to this Agreement and the Related Agreements,
and (iii)
those shares issued or reserved for issuance to the Purchaser,
there are
no outstanding options, warrants, rights (including conversion
or
pre-emptive rights and rights of first refusal), proxy or stockholder
agreements, or arrangements or agreements of any kind for the purchase
or
acquisition from the Company of any of its securities. Except as
disclosed
on Schedule 4.3(b), neither the offer, issuance or sale of any
of the
Company Note, the Iview Note or Iview Option, or the Company Warrant
or
the issuance of any of the Shares, nor the consummation of any
transaction
contemplated hereby will result in a change in the price or number
of any
securities of the Company, Iview or Iview Parent outstanding, under
anti-dilution or other similar provisions contained in or affecting
any
such securities.
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5 -
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(c)
|
All
issued and outstanding shares of the Company’s common stock (the
“Company
Common Stock”):
(i) have been duly authorized and validly issued and are fully
paid and
non-assessable; and (ii) were issued in compliance with all applicable
provincial and federal laws concerning the issuance of securities.
All
issued and outstanding shares of Iview’s Common Stock (the “Iview
Common Stock”):
(i) have been duly authorized and validly issued and are fully
paid and
non-assessable; and (ii) were issued in compliance with all applicable
provincial and federal laws concerning the issuance of securities.
All
issued and outstanding shares of Iview Parent’s common stock (the
“Iview
Parent Common Stock”):
(i) have been duly authorized and validly issued and are fully
paid and
non-assessable; and (ii) were issued in compliance with all applicable
federal laws concerning the issuance of
securities.
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|
(d)
|
The
rights, preferences, privileges and restrictions of the shares
of the
Company Common Stock are as stated in the Company’s Certificate of
Incorporation (the “Company
Charter”).
The rights, preferences, privileges and restrictions of the shares
of the
Iview Common Stock are as stated in Iview’s Certificate of Incorporation
(the “Iview
Charter”).
The rights, preferences, privileges and restrictions of the shares
of
Iview Parent Common Stock are as stated in Iview Parent’s Certificate of
Incorporation (the “Iview
Parent Charter”).
The Iview Option Shares have been duly and validly reserved for
issuance.
When issued in compliance with the provisions of this Agreement,
the
Company’s Charter, Iview’s Charter, and/or Iview Parent’s Charter, as
applicable, the Securities will be validly issued, fully paid and
non-assessable, and will be free of any liens or encumbrances;
provided,
however, that the Securities may be subject to restrictions on
transfer
under state, provincial and/or federal securities laws as set forth
herein
or as otherwise required by such laws at the time a transfer is
proposed
or pursuant to the terms of the Securities or of related shareholder
or
similar agreements entered into by the
Purchaser.
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|
4.4
|
Authorization;
Binding Obligations.
|
All
corporate, partnership or limited liability company, as the case may be,
action
on the part of the Company, Iview, Iview Parent, and each of their respective
Subsidiaries (including their respective officers and directors) necessary
for
the authorization of this Agreement and the Related Agreements, the performance
of all obligations of the Company and its Subsidiaries hereunder and under
the
other Related Agreements at the Closing and, the authorization, sale, issuance
and delivery of the Company Note, the Iview Note and the Company Warrant
has
been taken or will be taken prior to the Closing. This Agreement and the
Related
Agreements, when executed and delivered and to the extent it is a party thereto,
will be valid and binding obligations of each of the Company, Iview, Iview
Parent, and each of their respective Subsidiaries, enforceable against each
such
person in accordance with their terms, except:
|
(a)
|
as
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application affecting enforcement of creditors’
rights; and
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6 -
|
(b)
|
general
principles of equity that restrict the availability of equitable
or legal
remedies.
|
The
sale
of the Company Note and the Iview Note is not and will not be subject to
any
pre-emptive rights or rights of first refusal that have not been properly
waived
or complied with. The issuance of the Company Warrant and the subsequent
exercise of the Company Warrant for the Shares are not and will not be subject
to any pre-emptive rights or rights of first refusal that have not been properly
waived or complied with.
|
4.5
|
Liabilities.
|
Neither
the Company, Iview, Iview Parent, nor any of their respective Subsidiaries
has
any contingent liabilities, except current liabilities incurred in the ordinary
course of business and liabilities set forth on Schedule 4.5.
|
4.6
|
Agreements;
Action.
|
Except
as
set forth on Schedule 4.6:
|
(a)
|
other
than those among the Company, Iview, Iview Parent and any one or
more of
their respective Subsidiaries, there are no agreements, understandings,
instruments, contracts, proposed transactions, judgments, orders,
writs or
decrees to which the Company, Iview, Iview Parent, or any of their
respective Subsidiaries is a party or by which it is bound which
may
involve: (i) obligations (contingent or otherwise) of, or payments
to, the Company, Iview, Iview Parent, or any of their respective
Subsidiaries in excess of USD$100,000 (other than obligations of,
or
payments to, the Company, Iview Parent, or any of their respective
Subsidiaries (1) to the Purchaser and (2) arising from purchase
or sale
agreements entered into in the ordinary course of business); or
(ii) the
transfer or license of any patent, copyright, trade secret or other
proprietary right to or from the Company, Iview, Iview Parent (other
than
licenses arising from the purchase of “off the shelf” or other standard
products); or (iii) provisions restricting the development, manufacture
or
distribution of the Company, Iview, Iview Parent, or any of their
respective Subsidiaries’ products or services; or (iv) indemnification by
the Company, Iview, Iview Parent, or any of their respective Subsidiaries
with respect to infringements of proprietary
rights.
|
|
(b)
|
Since
December 31, 2004 (the “Balance
Sheet Date”),
other than as disclosed on the Company’s Securities and Exchange
Commission filings, neither the Company, Iview, Iview Parent, nor
any of
their respective Subsidiaries has: (i) declared or paid any dividends,
or
authorized or made any distribution upon or with respect to any
class or
series of its capital stock; (ii) incurred any indebtedness for
money
borrowed or any other liabilities (other than ordinary course obligations)
individually in excess of USD$100,000 or, in the case of indebtedness
and/or liabilities individually less than USD$100,000, in excess
of
USD$200,000 in the aggregate; (iii) made any loans or advances
to any
person not in excess, individually or in the aggregate, of USD$100,000,
other than ordinary course advances for travel expenses; or
(iv) sold, exchanged or otherwise disposed of any of its assets or
rights, other than the sale of its inventory in the ordinary course
of
business.
|
-
7 -
|
(c)
|
For
the purposes of subsections (a)
and (b)
above, all indebtedness, liabilities, agreements, understandings,
instruments, contracts and proposed transactions involving the
same person
or entity (including persons or entities the Company, Iview, Iview
Parent,
or any of their respective Subsidiaries has reason to believe are
affiliated therewith) shall be aggregated for the purpose of meeting
the
individual minimum dollar amounts of such
subsections.
|
|
(d)
|
Each
of the Company, Iview and Iview Parent makes and keep books, records,
and
accounts, that, in reasonable detail, accurately and fairly reflect
the
transactions and dispositions of their respective assets. Each
of the
Company, Iview and Iview Parent maintains internal control over
financial
reporting (“Financial
Reporting Controls”)
designed by, or under the supervision of, the Company’s, Iview’s or Iview
Parent’s principal executive and principal financial officers, and
effected by the Company’s, Iview’s or Iview Parent’s board of directors,
management, and other personnel, to provide reasonable assurance
regarding
the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with Canadian generally
accepted accounting principles (“GAAP”),
including that:
|
|
(i)
|
transactions
are executed in accordance with management’s general or specific
authorization;
|
|
(ii)
|
unauthorized
acquisition, use, or disposition of the Company’s assets that could have a
material effect on the financial statements are prevented or timely
detected;
|
|
(iii)
|
transactions
are recorded as necessary to permit preparation of financial statements
in
accordance with GAAP, and that the Company’s, Iview’s and Iview Parent’s
receipts and expenditures are being made only in accordance with
authorizations of the Company’s, Iview’s and Iview Parent’s management and
board of directors;
|
|
(iv)
|
transactions
are recorded as necessary to maintain accountability for assets;
and
|
|
(v)
|
the
recorded accountability for assets is compared with the existing
assets at
reasonable intervals, and appropriate action is taken with respect
to any
differences.
|
|
4.7
|
Obligations
to Related Parties.
|
Except
as
set forth on Schedule 4.7, there are no obligations of the Company, Iview,
Iview
Parent, or any of their respective Subsidiaries to officers, directors,
stockholders or employees of the Company, Iview, Iview Parent, or any of
their
respective Subsidiaries other than:
-
8 -
|
(a)
|
for
payment of salary for services rendered and for bonus
payments;
|
|
(b)
|
reimbursement
for reasonable expenses incurred on behalf of the Company, Iview,
Iview
Parent, and their respective
Subsidiaries;
|
|
(c)
|
for
other standard employee benefits made generally available to all
employees
(including stock option agreements outstanding under any stock
option plan
approved by the Board of Directors of the Company, Iview, Iview
Parent,
and each of their Subsidiaries, as applicable);
and
|
|
(d)
|
obligations
listed in the Company’s, Iview’s, Iview Parent’s, and each of their
respective Subsidiaries Financial
Statements.
|
Except
as
described above or set forth on Schedule 4.7, to the best of the Company’s,
Iview’s and Iview Parent’s knowledge, none of the officers, directors, key
employees or stockholders of the Company, Iview, Iview Parent, or any of
their
respective Subsidiaries or any members of their immediate families, are indebted
to the Company, Iview, Iview Parent, or any of their respective Subsidiaries,
individually or in the aggregate, in excess of USD$50,000 or have any direct
or
indirect ownership interest in any firm or corporation with which the Company,
Iview, Iview Parent, or any of their respective Subsidiaries is affiliated
or
with which the Company, Iview, Iview Parent, or any of their respective
Subsidiaries has a business relationship, or any firm or corporation which
competes with the Company, Iview, Iview Parent, or any of their respective
Subsidiaries, other than passive investments in publicly traded companies
(representing less than two percent (2%) of such company) which may compete
with
the Company, Iview, Iview Parent, or any of their respective Subsidiaries.
Except as described above, no officer, director or stockholder, or any member
of
their immediate families, is, directly or indirectly, interested in any material
contract with the Company, Iview, Iview Parent, or any of their respective
Subsidiaries and no agreements, understandings or proposed transactions are
contemplated between the Company, Iview, Iview Parent, or any of their
respective Subsidiaries and any such person. Except as set forth on Schedule
4.7, neither the Company, Iview, Iview Parent, nor any of their respective
Subsidiaries is a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation.
|
4.8
|
Changes.
|
Since
the
Balance Sheet Date, except as disclosed in any Schedule to this Agreement
or to
any of the Related Agreements or as relating to any material agreement entered
into with the Purchaser, there has not been:
|
(a)
|
any
change in the business, assets, liabilities, condition (financial
or
otherwise), properties, operations or prospects of the Company,
Iview,
Iview Parent, or any of their respective Subsidiaries, which individually
or in the aggregate has had, or could reasonably be expected to
have,
individually or in the aggregate, a Material Adverse
Effect;
|
-
9 -
|
(b)
|
any
resignation or termination (constructive or otherwise) of any officer,
key
employee or group of employees of the Company, Iview, Iview Parent,
or any
of their respective Subsidiaries;
|
|
(c)
|
any
material change, except in the ordinary course of business, in
the
contingent obligations of the Company, Iview, Iview Parent, or
any of
their respective Subsidiaries by way of guaranty, endorsement,
indemnity,
warranty or otherwise;
|
|
(d)
|
any
damage, destruction or loss, whether or not covered by insurance,
has had,
or could reasonably be expected to have, individually or in the
aggregate,
a Material Adverse Effect;
|
|
(e)
|
any
waiver by the Company, Iview, Iview Parent, or any of their respective
Subsidiaries of a valuable right or of a material debt owed to
it;
|
|
(f)
|
any
direct or indirect loans made by the Company, Iview, Iview Parent,
or any
of their respective Subsidiaries to any stockholder, employee,
officer or
director of the Company, Iview, Iview Parent, or any of their respective
Subsidiaries, other than advances made in the ordinary course of
business;
|
|
(g)
|
any
material increase in any compensation arrangement or agreement
with any
key employee, officer, director or stockholder of the Company,
Iview,
Iview Parent or any of their respective Subsidiaries;
|
|
(h)
|
any
declaration or payment of any dividend or other distribution of
the assets
of the Company, Iview, Iview Parent or any of their respective
Subsidiaries;
|
|
(i)
|
any
labor organization activity related to the Company, Iview, Iview
Parent or
any of their respective
Subsidiaries;
|
|
(j)
|
any
debt, obligation or liability incurred, assumed or guaranteed by
the
Company, Iview, Iview Parent or any of their respective Subsidiaries
in
excess of a principal amount of USD$300,000 in the aggregate, except
those
for immaterial amounts and for current liabilities incurred in
the
ordinary course of business;
|
|
(k)
|
any
sale, assignment or transfer of any material patents, trademarks,
copyrights, trade secrets or other intangible assets owned by the
Company,
Iview, Iview Parent or any of their respective Subsidiaries other
than in
the ordinary course of business;
|
|
(l)
|
any
change in any material agreement to which the Company, Iview, Iview
Parent
or any of their respective Subsidiaries is a party or by which
either the
Company, Iview, Iview Parent or any of their respective Subsidiaries
is
bound which either individually or in the aggregate has had, or
could
reasonably be expected to have, individually or in the aggregate,
a
Material Adverse Effect;
|
-
10 -
|
(m)
|
any
other event or condition of any character that, either individually
or in
the aggregate, has had, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;
or
|
|
(n)
|
any
arrangement or commitment by the Company, Iview, Iview Parent or
any of
their respective Subsidiaries to do any of the acts described in
subsection (a)
through (m)
above.
|
|
4.9
|
Title
to Properties and Assets; Liens,
Etc.
|
Except
as
set forth on Schedule 4.9, each of the Company, Iview, Iview Parent and each
of
their respective Subsidiaries has good and marketable title to its properties
and assets, and good title to its leasehold estates, in each case subject
to no
mortgage, pledge, lien, lease, encumbrance or charge, other than:
|
(a)
|
those
resulting from taxes which have not yet become
delinquent;
|
|
(b)
|
minor
liens and encumbrances which do not materially detract from the
value of
the property subject thereto or materially impair the operations
of the
Company, Iview, Iview Parent or any of their respective Subsidiaries;
and
|
|
(c)
|
those
that have otherwise arisen in the ordinary course of
business.
|
All
facilities, machinery, equipment, fixtures, vehicles and other properties
owned,
leased or used by the Company, Iview, Iview Parent and their respective
Subsidiaries are in operating condition and repair and are reasonably fit
and
usable for the purposes for which they are being used. Except as set forth
on
Schedule 4.9, the Company, Iview, Iview Parent and their respective Subsidiaries
are in material compliance with all material terms of each lease to which
it is
a party or is otherwise bound.
|
4.10
|
Intellectual
Property.
|
|
(a)
|
Each
of the Company, Iview, Iview Parent and each of their respective
Subsidiaries owns or possesses sufficient legal rights to all patents,
trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information and other proprietary rights and processes
necessary
for its business as now conducted and to the Company’s, Iview’s and Iview
Parent’s knowledge, as presently proposed to be conducted (the
“Intellectual
Property”),
without any known infringement of the rights of others. Except
as set
forth on Schedule 4.10(a), there are no outstanding options, licenses
or agreements of any kind relating to the foregoing proprietary
rights,
nor is the Company, Iview, Iview Parent or any of their respective
Subsidiaries bound by or a party to any options, licenses or agreements
of
any kind with respect to the patents, trademarks, service marks,
trade
names, copyrights, trade secrets, licenses, information and other
proprietary rights and processes of any other person or entity
other than
such licenses or agreements arising from the purchase of “off the shelf”
or standard products.
|
-
11 -
|
(b)
|
Neither
the Company, Iview, Iview Parent nor any of their respective Subsidiaries
has received any communications alleging that any of the Company,
Iview,
Iview Parent or any of their respective Subsidiaries has violated
any of
the patents, trademarks, service marks, trade names, copyrights
or trade
secrets or other proprietary rights of any other person or entity,
nor is
the Company, Iview, Iview Parent or any of their respective Subsidiaries
aware of any basis favourable.
|
|
(c)
|
Neither
the Company, Iview nor Iview Parent believes it is or will be necessary
to
utilize any inventions, trade secrets or proprietary information
of any of
its employees made prior to their employment by the Company, Iview,
Iview
Parent or any of their respective Subsidiaries, except for inventions,
trade secrets or proprietary information that have been rightfully
assigned to the Company, Iview, Iview Parent or any of their respective
Subsidiaries.
|
|
4.11
|
Compliance
with Other Instruments.
|
Neither
the Company, Iview, Iview Parent nor any of their respective Subsidiaries
is in
violation or default of (x) any term of its Charter or Bylaws, or (y) of
any
provision of any indebtedness, mortgage, indenture, contract, agreement or
instrument to which it is party or by which it is bound or of any judgment,
decree, order or writ, which violation or default, in the case of this clause
(y), has had, or could reasonably be expected to have, either individually
or in
the aggregate, a Material Adverse Effect. The execution, delivery and
performance of and compliance with this Agreement and the Related Agreements
to
which it is a party, and the issuance and sale of the Company Note by the
Company, the Iview Note by Iview and the other Securities by the Company
and
Iview Parent each pursuant hereto and thereto, will not, with or without
the
passage of time or giving of notice, result in any such violation, or be
in
conflict with or constitute a default under any such term or provision, or
result in the creation of any mortgage, pledge, lien, encumbrance or charge
upon
any of the properties or assets of the Company, Iview, Iview Parent or any
of
their respective Subsidiaries or the suspension, revocation, impairment,
forfeiture or non-renewal of any permit, license, authorization or approval
applicable to the Company, Iview, or Iview Parent, its business or operations
or
any of its assets or properties that could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.
|
4.12
|
Litigation.
|
Except
as
set forth on Schedule 4.12 hereto, there is no action, suit, proceeding or
investigation pending or, to the Company’s, Iview’s or Iview Parent’s knowledge,
currently threatened against the Company, Iview or Iview Parent or any of
their
respective Subsidiaries that prevents the Company, Iview or Iview Parent
or any
of their respective Subsidiaries from entering into this Agreement or the
other
Related Agreements, or from consummating the transactions contemplated hereby
or
thereby, or which has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect or any change
in the
current equity ownership of the Company, Iview or Iview Parent or any of
their
respective Subsidiaries, nor is the Company, Iview or Iview Parent aware
that
there is any basis to assert any of the foregoing. Neither the Company, Iview,
Iview Parent nor any of their respective Subsidiaries is a party or subject
to
the provisions of any order, writ, injunction, judgment or decree of any
court
or government agency or instrumentality. There is no action, suit, proceeding
or
investigation by the Company, Iview or Iview Parent or any of their respective
Subsidiaries currently pending or which the Company, Iview or Iview Parent
or
any of their respective Subsidiaries intends to initiate.
-
12 -
|
4.13
|
Tax
Returns and Payments.
|
Except
as
set forth on Schedule 4.13, each of the Company, Iview, Iview Parent and
each of
their respective Subsidiaries has timely filed or received an extension to
file
all tax returns (federal, state and local) required to be filed by it. Except
as
set forth on Schedule 4.13, all taxes shown to be due and payable on such
returns, any assessments imposed, and all other taxes due and payable by
the
Company, Iview, Iview Parent or any of their respective Subsidiaries on or
before the Closing, have been paid or will be paid prior to the time they
become
delinquent unless the Company, Iview, Iview Parent or such Subsidiary is
contesting such taxes in good faith and has allocated sufficient reserves.
Except as set forth on Schedule 4.13, neither the Company, Iview, Iview Parent
nor any of their respective Subsidiaries has been advised:
|
(a)
|
that
any of its returns, federal, state, provincial or other, have been
or are
being audited as of the date hereof;
or
|
|
(b)
|
of
any deficiency in assessment or proposed judgment to its federal,
state,
provincial or other taxes.
|
The
Company, Iview and Iview Parent has no knowledge of any liability of any
tax to
be imposed upon its properties or assets as of the date of this Agreement
for
which a sufficient and appropriate reserve has not been made (if determined
reasonable and necessary by management of the Company, Iview and/or Iview
Parent
in the exercise of its reasonable business judgment).
|
4.14
|
Employees.
|
-
13 -
Except
as
set forth on Schedule 4.14, neither the Company, Iview, Iview Parent nor
any of
their respective Subsidiaries has any collective bargaining agreements with
any
of its employees. There is no labor union organizing activity pending or,
to the
Company’s, Iview’s or Iview Parent’s knowledge, threatened with respect to the
Company, Iview, Iview Parent or any of their respective Subsidiaries. Except
as
disclosed on Schedule 4.14, neither the Company, Iview, Iview Parent nor
any of
their respective Subsidiaries is a party to or bound by any currently effective
employment contract, deferred compensation arrangement, bonus plan, incentive
plan, profit sharing plan, retirement agreement or other employee compensation
plan or agreement. To the Company’s, Iview’s and Iview Parent’s knowledge, no
employee of the Company, Iview or Iview Parent or any of their respective
Subsidiaries, nor any consultant with whom the Company, Iview, Iview Parent
or
any of their respective Subsidiaries has contracted, is in violation of any
term
of any employment contract, proprietary information agreement or any other
agreement relating to the right of any such individual to be employed by,
or to
contract with, the Company, Iview, Iview Parent or any of their respective
Subsidiaries because of the nature of the business to be conducted by the
Company, Iview, Iview Parent or any of their respective Subsidiaries; and
to the
Company’s, Iview’s and Iview Parent’s knowledge, the continued employment by the
Company, Iview, Iview Parent or any of their respective Subsidiaries of its
present employees, and the performance of the Company’s, Iview’s, Iview Parent’s
and their respective Subsidiaries’ contracts with its independent contractors,
will not result in any such violation. Neither the Company, Iview, Iview
Parent
nor any of their respective Subsidiaries is aware that any of its employees
is
obligated under any contract (including licenses, covenants or commitments
of
any nature) or other agreement, or subject to any judgment, decree or order
of
any court or administrative agency, that would interfere with their duties
to
the Company, Iview, Iview Parent or any of their respective Subsidiaries.
Neither the Company, Iview, Iview Parent nor any of their respective
Subsidiaries has received any notice alleging that any such violation has
occurred. Except for employees who have a current effective employment agreement
with the Company, Iview, Iview Parent or any of their respective Subsidiaries,
no employee of the Company, Iview Parent or any of their respective Subsidiaries
has been granted the right to continued employment by the Company, Iview,
Iview
Parent or any of their respective Subsidiaries or to any material compensation
following termination of employment with the Company, Iview, Iview Parent
or any
of their respective Subsidiaries (other than as required law). Except as
set
forth on Schedule 4.14, neither the Company, Iview or Iview Parent is aware
that
any officer, key employee or group of employees intends to terminate his,
her or
their employment with the Company, Iview, Iview Parent or any of their
respective Subsidiaries, nor does the Company, Iview, Iview Parent or any
of
their respective Subsidiaries have a present intention to terminate the
employment of any officer, key employee or group of employees.
|
4.15
|
Registration
Rights and Voting Rights.
|
Except
(i) in connection with this Agreement, the Related Agreements and any agreement
entered into between the Company, its Subsidiaries and the Purchaser, and
(ii)
as set forth on Schedule 4.15, neither the Company, Iview, Iview Parent nor
any
of their respective Subsidiaries is presently under any obligation, and neither
the Company, Iview, Iview Parent nor any of their respective Subsidiaries
has
granted any rights to register any of the Company’s, Iview’s, Iview Parent’s or
their respective Subsidiaries’ presently outstanding securities or any of its
securities that may hereafter be issued. Except as set forth on Schedule
4.15 to
the Company’s, Iview’s and Iview Parent’s knowledge, no stockholder of the
Company, Iview, Iview Parent or any of their respective Subsidiaries has
entered
into any agreement with respect to the voting of equity securities of the
Company, Iview, Iview Parent or any of their respective
Subsidiaries.
|
4.16
|
Compliance
with Laws; Permits.
|
Neither
the Company, Iview, Iview Parent nor any of their respective Subsidiaries
is in
violation of any applicable statute, rule, regulation, order or restriction
of
any domestic or foreign government or any instrumentality or agency thereof
in
respect of the conduct of its business or the ownership of its properties
which
has had, or could reasonably be expected to have, either individually or
in the
aggregate, a Material Adverse Effect. No governmental orders, permissions,
consents, approvals or authorizations are required to be obtained and no
registrations or declarations are required to be filed in connection with
the
execution and delivery of this Agreement or any other Related Agreement and
the
issuance of any of the Securities, except such as has been duly and validly
obtained or filed, or with respect to any filings that must be made after
the
Closing, as will be filed in a timely manner. Each of the Company, Iview,
Iview
Parent and their respective Subsidiaries has all material franchises, permits,
licenses and any similar authority necessary for the conduct of its business
as
now being conducted by it, the lack of which could, either individually or
in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
-
14 -
|
4.17
|
Environmental
and Safety Laws.
|
Neither
the Company, Iview, Iview Parent nor any of their respective Subsidiaries
is in
violation of any applicable statute, law or regulation relating to the
environment or occupational health and safety, and to its knowledge, no material
expenditures are or will be required in order to comply with any such existing
statute, law or regulation. Except as set forth on Schedule 4.17, no Hazardous
Materials (as defined below) are used or have been used, stored, or disposed
of
by the Company, Iview, Iview Parent or any of their respective Subsidiaries
or,
to the Company’s, Iview’s or Iview Parent’s knowledge, by any other person or
entity on any property owned, leased or used by the Company, Iview, Iview
Parent
or any of their respective Subsidiaries. For the purposes of the preceding
sentence, “Hazardous
Materials”
shall
mean:
|
(a)
|
materials
which are listed or otherwise defined as “hazardous”
or “toxic”
under any applicable local, state, provincial, federal and/or foreign
laws
and regulations that govern the existence and/or remedy of contamination
on property, the protection of the environment from contamination,
the
control of hazardous wastes, or other activities involving hazardous
substances, including building materials;
or
|
|
(b)
|
any
petroleum products or nuclear
materials.
|
|
4.18
|
Valid
Offering.
|
Assuming
the accuracy of the representations and warranties of the Purchaser contained
in
this Agreement, the offer, sale and issuance of the Securities will be exempt
from the prospectus and registration requirements of the Securities
Act
(Ontario) (the “Securities
Act”)
and
from the registration requirements of the Securities
Act of 1933,
as
amended (the “US
Securities Act”),
and
will have been registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification requirements
of
all applicable state and provincial securities laws.
|
4.19
|
Full
Disclosure.
|
Each
of
the Company, Iview, Iview Parent and each of their respective Subsidiaries
has
provided the Purchaser with all information requested by the Purchaser in
connection with its decision to purchase the Company Note, the Iview Note
and
the Company Warrant, including all information the Company, Iview, Iview
Parent
and their respective Subsidiaries believe is reasonably necessary to make
such
investment decision. Neither this Agreement, the Related Agreements, the
exhibits and schedules hereto and thereto nor any other document delivered
by
the Company, Iview, Iview Parent or any of their respective Subsidiaries
to the
Purchaser or its attorneys or agents in connection herewith or therewith
or with
the transactions contemplated hereby or thereby, contain any untrue statement
of
a material fact nor omit to state a material fact necessary in order to make
the
statements contained herein or therein, in light of the circumstances in
which
they are made, not misleading. Any financial projections and other estimates
provided to the Purchaser by the Company or any of its Subsidiaries were
based
on the Company’s, Iview’s, Iview Parent’s and their respective Subsidiaries’
experience in the industry and on assumptions of fact and opinion as to future
events which the Company, Iview, Iview Parent or any of their respective
Subsidiaries, at the date of the issuance of such projections or estimates,
believed to be reasonable.
-
15 -
|
4.20
|
Insurance.
|
Each
of
the Company, Iview, Iview Parent and each of their respective Subsidiaries
has
general commercial, product liability, fire and casualty insurance policies
with
coverages which the Company believes are customary for companies similarly
situated to each of the Company, Iview, Iview Parent and their respective
Subsidiaries in the same or similar business.
|
4.21
|
Financial
Statements.
|
The
Company has furnished the Purchaser (or filed with the SEC) with copies of:
the
Company’s consolidated audited balance sheet, statement of retained earnings,
statement of operations and statement of cash flows for the fiscal years
ended
2004, 2003 and 2002 (collectively, the “Financial Statements”). Such Financial
Statements have been prepared in accordance with generally accepted accounting
principles as in effect in the United States, in each case, applied on a
consistent basis during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto or (ii) in the
case
of unaudited interim statements, to the extent they may not include footnotes
or
may be condensed) and fairly present in all material respects the financial
condition, the results of operations, the retained earnings and the cash
flows
of the Company and Iview and its subsidiaries, as of, and for, the periods
presented in, each such Financial Statement.
|
4.22
|
Dilution.
|
The
Company specifically acknowledges that its obligation to issue the shares
of
Company Common Stock upon exercise of the Company Warrant is binding upon
the
Company and enforceable regardless of the dilution such issuance may have
on the
ownership interests of other shareholders of the Company. Iview Parent
specifically acknowledges that its obligation to issue the shares of Iview
Parent’s Common Stock upon exercise of the Iview Option is binding upon Iview
Parent and enforceable regardless of the dilution such issuance may have
on the
ownership interests of other shareholders of Iview Parent.
|
4.23
|
Patriot
Act.
|
-
16 -
The
Company certifies that, to the best of Company’s, Iview’s and Iview Parent’s
knowledge, neither the Company, Iview, Iview Parent nor any of their respective
Subsidiaries has been designated, and is not owned or controlled, by a
“suspected
terrorist”
as
defined in Executive Order 13224. The Company hereby acknowledges that the
Purchaser seeks to comply with all applicable laws concerning money laundering
and related activities. In furtherance of those efforts, the Company hereby
represents, warrants and agrees that: (i) none of the cash or property that
the
Company, Iview, Iview Parent or any of their respective Subsidiaries will
pay or
will contribute to the Purchaser has been or shall be derived from, or related
to, any activity that is deemed criminal under United States law; and (ii)
no
contribution or payment by the Company, Iview, Iview Parent or any of their
respective Subsidiaries to the Purchaser, to the extent that they are within
the
Company’s, Iview Parent’s and/or their respective Subsidiaries’ control shall
cause the Purchaser to be in violation of the United States Bank
Secrecy Act,
the
United States International
Money Laundering Control Act of 1986
or the
United States International
Money Laundering Abatement and Anti-Terrorist Financing Act of
2001.
The
Company shall promptly notify the Purchaser if any of these representations
ceases to be true and accurate regarding the Company, Iview, Iview Parent
or any
of their respective Subsidiaries. The Company agrees to provide the Purchaser
any additional information regarding the Company, Iview, Iview Parent or
any of
their respective Subsidiaries that the Purchaser deems necessary or convenient
to ensure compliance with all applicable laws concerning money laundering
and
similar activities. The Company understands and agrees that if at any time
it is
discovered that any of the foregoing representations are incorrect, or if
otherwise required by applicable law or regulation related to money laundering
similar activities, the Purchaser may undertake appropriate actions to ensure
compliance with applicable law or regulation, including but not limited to
segregation and/or redemption of the Purchaser’s investment in the Company. The
Company further understands that the Purchaser may release confidential
information about the Company, Iview, Iview Parent and their respective
Subsidiaries and, if applicable, any underlying beneficial owners, to proper
authorities if the Purchaser, in its sole discretion, determines that it
is in
the best interests of the Purchaser in light of relevant rules and regulations
under the laws set forth in subsection (ii) above.
|
4.24
|
ERISA.
|
Based
upon the Employee
Retirement Income Security Act of 1974
(“ERISA”),
and
the regulations and published interpretations thereunder: (i) neither the
Company nor any of its Subsidiaries has engaged in any Prohibited Transactions
(as defined in Section 406 of ERISA and Section 4975 of the Internal
Revenue Code of 1986,
as
amended (the “Code”));
(ii)
each of the Company, Iview, Iview Parent and each of their respective
Subsidiaries has met all applicable minimum funding requirements under Section
302 of ERISA in respect of its plans; (iii) neither the Company, Iview, Iview
Parent nor any of their respective Subsidiaries has any knowledge of any
event
or occurrence which would cause the Pension Benefit Guaranty Corporation
to
institute proceedings under Title IV of ERISA to terminate any employee benefit
plan(s); (iv) neither the Company, Iview, Iview Parent nor any of their
respective Subsidiaries has any fiduciary responsibility for investments
with
respect to any plan existing for the benefit of persons other than the
Company’s, Iview’s, Iview Parent’s or such Subsidiary’s employees; and (v)
neither the Company, Iview, Iview Parent nor any of their respective
Subsidiaries has withdrawn, completely or partially, from any multi-employer
pension plan so as to incur liability under the Multiemployer
Pension Plan Amendments Act of 1980;
which
liability is unpaid as of the date hereof.
-
17 -
|
4.25
|
Bank
Accounts.
|
Schedule 4.25
sets out
each bank account maintained by the Company, Iview, Iview Parent and their
respective Subsidiaries which, in the ordinary course of business from time
to
time, may have in excess of Cdn.$50,000 on deposit.
|
5.
|
Representations
and Warranties of the
Purchaser.
|
The
Purchaser hereby represents and warrants to the Company as follows (such
representations and warranties do not lessen or obviate the representations
and
warranties of the Company set forth in this Agreement):
|
5.1
|
No
Shorting.
|
The
Purchaser or any of its affiliates and investment partners has not, will
not and
will not cause any person or entity to directly engage in “short
sales”
of
the
Company’s Common Stock as long as the Company Note and the Iview Note shall be
outstanding.
|
5.2
|
Requisite
Power and Authority.
|
The
Purchaser has all necessary power and authority under all applicable provisions
of law to execute and deliver this Agreement and the Related Agreements and
to
carry out their provisions. All corporate action on Purchaser’s part required
for the lawful execution and delivery of this Agreement and the Related
Agreements have been or will be effectively taken prior to the Closing. Upon
their execution and delivery, this Agreement and the Related Agreements will
be
valid and binding obligations of Purchaser, enforceable in accordance with
their
terms, except:
|
(a)
|
as
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application affecting enforcement of creditors’
rights; and
|
|
(b)
|
as
limited by general principles of equity that restrict the availability
of
equitable and legal remedies.
|
|
5.3
|
Investment
Representations.
|
|
(a)
|
The
Purchaser is resident in the jurisdiction of the Cayman
Islands.
|
|
(b)
|
The
Purchaser is acquiring the Securities for investment only and not
with a
view to resale or distribution in violation of any securities
laws.
|
|
(c)
|
The
Purchaser is not a party to, and is not acting in concert with
a person
who is party to: (A) an agreement to transfer the Purchaser’s legal or
beneficial interest in the Securities; or (B) an agreement to grant
a
participating interest in the
Securities.
|
|
(d)
|
As
the Securities purchased hereunder are subject to resale restrictions
under the Securities Act, the Purchaser shall comply with all securities
laws concerning any resale of the Securities purchased hereunder
and shall
consult with his, her or its own legal advisors with respect to
such
compliance.
|
-
18 -
|
(e)
|
If
required by applicable securities laws, the Purchaser will execute,
deliver, file and otherwise assist the Company in filing such reports,
undertakings and other documents with respect to the issuance of
the
Securities as may be required.
|
|
(f)
|
The
Purchaser is purchasing the Securities as principal for its own
account
and not as a nominee or agent.
|
|
(g)
|
The
Purchaser is an “accredited investor” as such term is defined in Rule
45-106 of the Ontario Securities Commission (“OSC”).
|
|
(h)
|
The
Purchaser understands that the Securities are being offered and
sold
pursuant to an exemption from prospectus and registration requirements
contained in the Securities Act based upon the Purchaser’s representations
contained in this Agreement, including, without limitation, that
the
Purchaser is an “accredited investor” as such term is defined in Rule
45-106 of the OSC.
|
|
(i)
|
The
Purchaser is an “accredited investor” within the meaning of Regulation D
under the Securities Act.
|
|
(j)
|
The
Purchaser understands that the Securities are being offered and
sold
pursuant to an exemption from registration contained in the US
Securities
Act based in part upon Purchaser’s representations contained in the
Agreement, including, without limitation, that the Purchaser is
an
“accredited
investor”
within the meaning of Regulation D under the U.S. Securities
Act.
|
|
(k)
|
The
Purchaser confirms that it has received or has had full access
to all the
information it considers necessary or appropriate to make an informed
investment decision with respect to the Company Note, the Iview
Note and
the Company Warrant to be purchased by it under this Agreement
and the
Shares acquired by it upon the exercise of the Iview Option and
the
Company Warrant. The Purchaser further confirms that it has had
an
opportunity to ask questions and receive answers from the Company
regarding the Company’s, Iview’s, Iview Parent’s and their respective
Subsidiaries’ business, management and financial affairs and the terms and
conditions of the Offering, the Company Note, the Iview Note, the
Iview
Option and the Company Warrant and the Securities and to obtain
additional
information (to the extent the Company possessed such information
or could
acquire it without unreasonable effort or expense) necessary to
verify any
information furnished to the Purchaser or to which the Purchaser
had
access.
|
|
5.4
|
Purchaser
Bears Economic Risk.
|
The
Purchaser has substantial experience in evaluating and investing in private
placement transactions of securities in companies similar to the Company
so that
it is capable of evaluating the merits and risks of its investment in the
Company and has the capacity to protect its own interests. The Purchaser
must
bear the economic risk of this investment until the Securities are sold pursuant
to: (i) an effective registration statement under the Securities Act or the
US
Securities Act; or (ii) an exemption from registration is available with
respect
to such sale.
-
19 -
|
5.5
|
Acquisition
for Own Account.
|
The
Purchaser is acquiring the Company Note, the Iview Note, the Iview Option
and
the Company Warrant, and the Shares for the Purchaser’s own account for
investment only, and not as a nominee or agent and not with a view towards
or
for resale in connection with their distribution.
|
5.6
|
Purchaser
Can Protect Its Interest.
|
The
Purchaser represents that by reason of its, or of its management’s, business and
financial experience, the Purchaser has the capacity to evaluate the merits
and
risks of its investment in the Company Note, the Iview Note, the Iview Option
and the Company Warrant and the Securities and to protect its own interests
in
connection with the transactions contemplated in this Agreement and the Related
Agreements. Further, Purchaser is aware of no publication of any advertisement
in connection with the transactions contemplated in the Agreement or the
Related
Agreements.
|
5.7
|
Legends.
|
|
(a)
|
The
Company Note shall bear substantially the following legend:
|
“THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933,
AS
AMENDED, OR ANY APPLICABLE, STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS NOTE UNDER SAID ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO CREATIVE
VISTAS, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.”
|
(b)
|
The
Iview Note shall bear substantially the following legend:
|
“THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933,
AS
AMENDED, OR ANY APPLICABLE, STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS NOTE UNDER SAID ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IVIEW
DIGITAL VIDEO SOLUTIONS INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.”
-
20 -
|
(c)
|
The
Iview Option Shares shall bear a legend which shall be in substantially
the following form until such shares are covered by an effective
registration statement filed with the
SEC:
|
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES
ACT OF 1933,
AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. THESE SHARES MAY NOT BE
SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND APPLICABLE STATE LAWS
OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO IVIEW HOLDING CORP. THAT SUCH
REGISTRATION IS NOT REQUIRED.”
|
(d)
|
The
Company Warrant Shares shall bear a legend which shall be in substantially
the following form until such shares are covered by an effective
registration statement filed with the
SEC:
|
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES
ACT OF 1933,
AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. THESE SHARES MAY NOT BE
SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND APPLICABLE STATE LAWS
OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO CREATIVE VISTAS, INC. THAT
SUCH
REGISTRATION IS NOT REQUIRED”
|
6.
|
Covenants
of the Company.
|
Each
of
the Company, Iview and Iview Parent covenants and agrees with the Purchaser
as
follows:
|
6.1
|
Stop-Orders.
|
The
Company will advise the Purchaser, promptly after it receives notice of issuance
by the SEC or any other regulatory authority of any stop order or of any
order
preventing or suspending any offering of any securities of the Company, or
of
the suspension of the qualification of the Common Stock of the Company for
offering or sale in any jurisdiction, or the initiation of any proceeding
for
any such purpose.
-
21 -
|
6.2
|
Use
of Funds.
|
The
Company agrees that it will use the proceeds of the sale of the Company Note
and
the Company Warrant to repay certain indebtedness of the Company to the
Purchaser and for general working capital purposes. Iview agrees that it
will
use the proceeds of the Iview Note for general working capital purposes.
Iview
Parent agrees that it will use the proceeds of the sale of the Option for
working capital purposes.
|
6.3
|
Reporting
Requirements.
|
The
Company will deliver, or cause to be delivered, to the Purchaser each of
the
following, which shall be in form and detail acceptable to the
Purchaser:
|
(a)
|
As
soon as available, and in any event within ninety (90) days after
the end
of each fiscal year of the Company, unless the Company files Form
12b-25,
Notification of Late Filing with the SEC, in which case within
100 days
after the end of such fiscal year of the Company, each of the Company’s
and each of its Subsidiaries’ audited financial statements with a report
of independent certified public accountants of recognized standing
selected by the Company and acceptable to the Purchaser (the “Accountants”),
which annual financial statements shall be without qualification
and shall
include each of the Company’s and each of its Subsidiaries’ balance sheet
as at the end of such fiscal year and the related statements of
each of
the Company’s and each of its Subsidiaries’ income, retained earnings and
cash flows for the fiscal year then ended, prepared on a consolidating
and
consolidated basis to include the Company, each Subsidiary of the
Company
and each of their respective affiliates, all in reasonable detail
and
prepared in accordance with GAAP, together with (i) if and when
available,
copies of any management letters prepared by the Accountants; and
(ii) a
certificate of the Company’s President, Chief Executive Officer or Chief
Financial Officer stating that such financial statements have been
prepared in accordance with GAAP and whether or not such officer
has
knowledge of the occurrence of any Event of Default (as defined
in the
Company Note) and, if so, stating in reasonable detail the facts
with
respect thereto;
|
|
(b)
|
As
soon as available and in any event within forty five (45) days
after the
end of each fiscal quarter of the Company, unless the Company files
Form
12b-25, Notification of Late Filing with the SEC, in which case
within 55
days after the end of such fiscal quarter of the Company, an
unaudited/internal balance sheet and statements of income, retained
earnings and cash flows of the Company and each of its Subsidiaries
as at
the end of and for such quarter and for the year to date period
then
ended, prepared on a consolidating and consolidated basis to include
all
the Company, each Subsidiary of the Company and each of their respective
affiliates, in reasonable detail and stating in comparative form
the
figures for the corresponding date and periods in the previous
year, all
prepared in accordance with GAAP, subject to year-end adjustments
and
accompanied by a certificate of the Company’s President, Chief Executive
Officer or Chief Financial Officer, stating (i) that such financial
statements have been prepared in accordance with GAAP, subject
to year-end
audit adjustments, and (ii) whether or not such officer has knowledge
of
the occurrence of any Event of Default (as defined in the Company
Note)
not theretofore reported and remedied and, if so, stating in reasonable
detail the facts with respect thereto;
|
-
22 -
|
6.4
|
Access
to Facilities.
|
To
the
extent permitted by applicable securities laws and regulations, each of the
Company, Iview, Iview Parent and each of their respective Subsidiaries will
permit any representatives designated by the Purchaser (or any successor
of the
Purchaser), upon reasonable advance notice and during normal business hours,
at
such person’s expense and accompanied by a representative of the Company,
to:
|
(a)
|
visit
and inspect any of the properties of the Company, Iview, Iview
Parent or
any of their respective
Subsidiaries;
|
|
(b)
|
examine
the corporate and financial records of the Company, Iview, Iview
Parent or
any of their respective Subsidiaries (unless such examination is
not
permitted by federal, state, provincial or local law or by contract)
and
make copies thereof or extracts therefrom;
and
|
|
(c)
|
discuss
the affairs, finances and accounts of the Company, Iview, Iview
Parent or
any of their respective Subsidiaries with the directors, officers
and
independent accountants of the Company, Iview, Iview Parent or
any of
their respective Subsidiaries.
|
Notwithstanding
the foregoing, neither the Company, Iview, Iview Parent nor any of their
respective Subsidiaries will provide any material, non-public information
to the
Purchaser unless the Purchaser signs a confidentiality agreement and otherwise
complies with Regulation FD, under the federal securities laws.
|
6.5
|
Taxes.
|
Each
of
the Company, Iview, Iview Parent and each of their respective Subsidiaries
will
promptly pay and discharge, or cause to be paid and discharged, when due
and
payable, all lawful taxes, assessments and governmental charges or levies
imposed upon the income, profits, property or business of the Company, Iview,
Iview Parent and their respective Subsidiaries; provided, however, that any
such
tax, assessment, charge or levy need not be paid if the validity thereof
shall
currently be contested in good faith by appropriate proceedings and if the
Company, Iview, Iview Parent and/or such Subsidiary shall have set aside
on its
books adequate reserves with respect thereto, and provided, further, that
the
Company, Iview, Iview Parent and their respective Subsidiaries will pay all
such
taxes, assessments, charges or levies forthwith upon the commencement of
proceedings to foreclose any lien which may have attached as security
therefor.
If
Company, Iview, Iview Parent or any of their respective Subsidiaries shall
be
required by law to deduct or withhold in respect of any and all present or
future taxes, levies, imposts, deductions and other governmental charges
or
withholdings, and all interest, penalties and other liabilities with respect
thereto, imposed by any jurisdiction (or any political subdivision thereof)
(“Taxes”)
other
than, with respect to the Purchaser, any Taxes (including income, branch
profits
or franchise taxes) imposed on or measured by its net income (“Indemnified
Taxes”)
from
or in respect of any sum payable hereunder to the Purchaser, then:
-
23 -
|
(a)
|
the
sum payable shall be increased by such additional amount (the
“Additional
Amount”)
as necessary so that after making all required deductions and withholdings
(including deductions and withholdings applicable to such Additional
Amount) the Purchaser receives an amount equal to the sum it would
have
received had no such deductions or withholdings been
made;
|
|
(b)
|
the
Company, Iview, Iview Parent or such Subsidiary shall make the
appropriate
deductions or withholdings and shall pay the full amount deducted
or
withheld to the relevant taxing authority or other authority in
accordance
with applicable law;
|
|
(c)
|
within
thirty (30) days after the date of such payment, upon the Purchaser’s
request, the Company, Iview, Iview Parent or such Subsidiary shall
furnish
to the Purchaser the original or a certified copy of a receipt
evidencing
payment thereof, or other evidence of payment reasonably satisfactory
to
the Purchaser;
|
|
(d)
|
if
the Company, Iview, Iview Parent or such Subsidiary fails to pay
amounts
in accordance with paragraph (b)
above, the Company, Iview, Iview Parent or such Subsidiary shall
indemnify
the Purchaser for any incremental Indemnified Taxes that is paid
by the
Purchaser as a result of the failure;
|
|
(e)
|
the
Company and/or Iview will indemnify the Purchaser for the full
amount of
any Taxes imposed by any jurisdiction and paid by the Purchaser
with
respect to any Additional Amount payable pursuant to
paragraph (a)
above and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such
Taxes are
correctly asserted; and
|
|
(f)
|
the
indemnification contemplated in paragraphs (d)
and (e)
above shall be made within 30 days from the date the Purchaser
makes
written demand favourable (which demand shall identify the nature
and
amount of Taxes for which indemnification is being sought and shall
include a copy of the relevant portion of any written assessment
from the
governmental authority demanding payment of such
Taxes).
|
|
6.6
|
Insurance.
|
-
24 -
Each
of
the Company, Iview, Iview Parent and their respective Subsidiaries will keep
its
assets which are of an insurable character insured by financially sound and
reputable insurers against loss or damage by fire, explosion and other risks
customarily insured against by companies in similar business similarly situated
as the Company, Iview, Iview Parent and their respective Subsidiaries; and
the
Company, Iview, Iview Parent and their respective Subsidiaries will maintain,
with financially sound and reputable insurers, insurance against other hazards
and risks and liability to persons and property to the extent and in the
manner
which the Company reasonably believes is customary for companies in similar
business similarly situated as the Company, Iview, Iview Parent and their
respective Subsidiaries and to the extent available on commercially reasonable
terms. The Company, Iview, Iview Parent and each of their respective
Subsidiaries will jointly and severally bear the full risk of loss from any
loss
of any nature whatsoever with respect to the assets pledged to the Purchaser
as
security for its obligations hereunder and under the Related Agreements.
At the
Company’s, Iview’s, Iview Parent’s and each of their respective Subsidiaries’
joint and several cost and expense in amounts and with carriers reasonably
acceptable to Purchaser, the Company, Iview, Iview Parent and each of their
respective Subsidiaries shall (i) keep all its insurable properties and
properties in which it has an interest insured against the hazards of fire,
flood, sprinkler leakage, those hazards covered by extended coverage insurance
and such other hazards, and for such amounts, as is customary in the case
of
companies engaged in businesses similar to the Company’s, Iview’s, Iview Parent
or their respective Subsidiary’s including business interruption insurance; (ii)
maintain a bond in such amounts as is customary in the case of companies
engaged
in businesses similar to the Company’s, Iview’s, Iview Parent’s or their
respective Subsidiary’s insuring against larceny, embezzlement or other criminal
misappropriation of insured’s officers and employees who may either singly or
jointly with others at any time have access to the assets or funds of the
Company, Iview, Iview Parent or any of their respective Subsidiaries either
directly or through governmental authority to draw upon such funds or to
direct
generally the disposition of such assets; (iii) maintain public and product
liability insurance against claims for personal injury, death or property
damage
suffered by others; (iv) maintain all such worker’s compensation or similar
insurance as may be required under the laws of any state or jurisdiction
in
which the Company, Iview, Iview Parent or their respective Subsidiary is
engaged
in business; and (v) furnish Purchaser with (x) copies of all policies and
evidence of the maintenance of such policies at least thirty (30) days before
any expiration date, (y) excepting the Company’s workers’ compensation policy,
endorsements to such policies naming Purchaser as “co-insured”
or
“additional
insured”
and
appropriate loss payable endorsements in form and substance satisfactory
to
Purchaser, naming Purchaser as loss payee, and (z) evidence that as to Purchaser
the insurance coverage shall not be impaired or invalidated by any act or
neglect of the Company, Iview, Iview Parent or any Subsidiary and the insurer
will provide Purchaser with at least thirty (30) days notice prior to
cancellation. So long as the Company Note and the Iview Note remains
outstanding, the Company, Iview, Iview Parent and each of their respective
Subsidiaries shall instruct the insurance carriers that in the event of any
loss
thereunder, the carriers shall make payment for such loss to the Company,
Iview,
Iview Parent and/or their respective Subsidiaries and Purchaser jointly.
In the
event that as of the date of receipt of each loss recovery upon any such
insurance, the Purchaser has not declared an event of default with respect
to
this Agreement or any of the Related Agreements, then the Company, Iview,
Iview
Parent and/or such Subsidiary shall be permitted to direct the application
of
such loss recovery proceeds toward investment in property, plant and equipment
that would comprise “Collateral”
secured
by Purchaser’s security interest pursuant to its security agreement, with any
surplus funds to be applied toward payment of the obligations of the Company
and
Iview to Purchaser. In the event that Purchaser has properly declared an
event
of default with respect to this Agreement or any of the Related Agreements,
then
all loss recoveries received by Purchaser upon any such insurance thereafter
may
be applied to the obligations of the Company and Iview hereunder and under
the
Related Agreements, in such order as the Purchaser may determine. Any surplus
(following satisfaction of all Company and Iview obligations to Purchaser)
shall
be paid by Purchaser to the Company or Iview or applied as may be otherwise
required by law. Any deficiency thereon shall be paid by the Company, Iview,
Iview Parent or their respective Subsidiaries, as applicable, to Purchaser,
on
demand. Notwithstanding anything herein or in any Related Agreement to the
contrary, the Company and Iview shall obtain customary insurance and name
the
Purchaser as an additional insured and loss payee thereunder as soon as
practicable following the Closing Date, and in any event within thirty days
following the Closing Date.
-
25 -
|
6.7
|
Intellectual
Property.
|
Each
of
the Company, Iview, Iview Parent and each of their respective Subsidiaries
shall
maintain in full force and effect its existence, rights and franchises and
all
licenses and other rights to use Intellectual Property owned or possessed
by it
and reasonably deemed to be necessary to the conduct of its
business.
|
6.8
|
Properties.
|
Each
of
the Company, Iview, Iview Parent and each of their respective Subsidiaries
will
keep its properties in good repair, working order and condition, reasonable
wear
and tear excepted, and from time to time make all needful and proper repairs,
renewals, replacements, additions and improvements thereto; and each of the
Company, Iview, Iview Parent and each of their respective Subsidiaries will
at
all times comply with each provision of all leases to which it is a party
or
under which it occupies property if the breach of such provision could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
|
6.9
|
Confidentiality.
|
Each
of
the Company, Iview and Iview Parent on behalf of itself and its successors,
assigns and Affiliates, agrees to use its best efforts to maintain as
confidential all confidential information provided to it by the Purchaser,
including, but not limited to, financial statements, certificates, reports,
agreements and information, financial results, information that may constitute
material non-public information and other information considered by the
Purchaser to be confidential and proprietary and to use such information
in
compliance with all applicable laws, solely for the purpose of and as necessary
to fulfill its obligations under this Agreement and will not reveal it to
any
third party without the express written consent of the Purchaser. Each of
the
Company, Iview and Iview Parent will take appropriate measures to prevent
its
agents, employees and subcontractors from using or disclosing any such
confidential information, except as is expressly permitted under this Agreement.
Each of the Company, Iview and Iview Parent agrees that it will not disclose,
and will not include in any public announcement, the name of the Purchaser,
unless expressly agreed to by the Purchaser or unless and until such disclosure
is required by law or applicable regulation, and then only to the extent
of such
requirement and upon notice to the Purchaser. Notwithstanding the foregoing,
the
Company, Iview and Iview Parent may disclose Purchaser’s identity and the terms
of this Agreement to its current and prospective debt and equity financing
sources and in its filings with the SEC.
-
26 -
|
6.10
|
Required
Approvals.
|
Each
of
the Company, Iview and Iview Parent, without the prior written consent of
the
Purchaser, shall not, and shall not permit any of their respective Subsidiaries
to:
|
(a)
|
(i) directly
or indirectly declare or pay any dividends, other than dividends
paid to
the Company, Iview or to Iview Parent or any of their respective
wholly-owned Subsidiaries, (ii) issue any preferred stock that is
mandatorily redeemable prior to the one year anniversary of Maturity
Date
(as defined in each of the Company Note and the Iview Note) or
(iii)
redeem any of its preferred stock or other equity interests other
than, in
the case of (i), contributions to the corporate expenses and overhead
of
the Company and all management services and analogous fees paid
to the
Company not to exceed Cdn$350,000 per annum and (ii) repayment
to A.C.
Ltd. for monthly expenses paid by A.C. Ltd. on behalf of
Iview;
|
|
(b)
|
liquidate,
dissolve or effect a material reorganization (it being understood
that in
no event shall the Company, Iview and/or Iview Parent dissolve,
liquidate
or merge with any other person or entity (unless the Company, Iview
and/or
Iview Parent is the surviving entity, as
applicable));
|
|
(c)
|
become
subject to (including, without limitation, by way of amendment
to or
modification of) any agreement or instrument which by its terms
would
(under any circumstances) restrict the Company’s, Iview’s, Iview Parent’s
or any of their respective Subsidiaries right to perform the provisions
of
this Agreement, any Related Agreement or any of the agreements
contemplated hereby or thereby;
|
|
(d)
|
materially
alter or change the scope of the business of the Company, Iview,
Iview
Parent and their respective Subsidiaries taken as a whole (other
than as
necessary or desirable to align such businesses with that of Company
or
its Subsidiaries);
|
|
(e)
|
(i) create,
incur, assume or suffer to exist any indebtedness (exclusive of
trade debt
and debt incurred to finance the purchase of equipment (not in
excess of
five percent (5%) of the fair market value of the Company’s, Iview, Iview
Parent’s and their respective Subsidiaries’ assets) whether secured or
unsecured other than (x) the Company’s, Cancable’s and Iview’s
indebtedness to the Purchaser, (y) indebtedness set forth on Schedule
6.12(e) attached hereto and made a part hereof and any refinancings
or
replacements thereof on terms no less favourable to the Purchaser
than the
indebtedness being refinanced or replaced, and (z) any debt incurred
in
connection with the purchase of assets in the ordinary course of
business,
or any refinancings or replacements thereof on terms no less favourable
to
the Purchaser than the indebtedness being refinanced or replaced;
(ii) cancel any debt owing to it in excess of USD$100,000 in the
aggregate during any 12 month period; (iii) assume, guarantee,
endorse or otherwise become directly or contingently liable in
connection
with any obligations of any other Person, except the endorsement
of
negotiable instruments by the Company and/or Iview for deposit
or
collection or similar transactions in the ordinary course of business
or
guarantees of indebtedness otherwise permitted to be outstanding
pursuant
to this clause (e);
|
-
27 -
|
(f)
|
create
or acquire any Subsidiary after the date hereof unless (i) such
Subsidiary is a wholly-owned Subsidiary of the Company or Iview
and
(ii) such Subsidiary becomes party to the 2005 Master Security
Agreement, the 2005 Stock Pledge Agreement and the Amended and
Restated
Guaranty (in each case, either by executing a counterpart thereof
or an
assumption or joinder agreement in respect thereof) and, to the
extent
reasonably required by the Purchaser, satisfies each condition
of this
Agreement and the Related Agreements as if such Subsidiary were
a
Subsidiary on the Closing Date; or
|
|
(g)
|
issue
or sell any of the share capital in the Company, Iview and/or Iview
Parent
or any rights, warrants or securities convertible into or exercisable
or
exchangeable for any share in the capital of the Company, Iview
and/or
Iview Parent.
|
|
6.11
|
Opinion.
|
On
the
Closing Date, the Company will deliver to the Purchaser (i) an opinion
reasonably acceptable to the Purchaser from the Company’s external corporate
legal counsel in the form of Exhibit F hereto and (ii) an opinion reasonably
acceptable to the Purchaser from the Company’s external tax counsel addressing
issues of withholding tax in the form of Exhibit G hereto.
|
6.12
|
Margin
Stock.
|
The
Company will not permit any of the proceeds of the Company Note, the Iview
Note
or the Company Warrant to be used directly or indirectly to “purchase”
or
“carry”
“margin
stock”
or
to
repay indebtedness incurred to “purchase”
or
“carry”
“margin
stock”
within
the respective meanings of each of the quoted terms under Regulation U of
the
Board of Governors of the Federal Reserve System as now and from time to
time
hereafter in effect.
|
6.13
|
Financing
Right of First Refusal.
|
-
28 -
|
(a)
|
For
a period of one hundred eighty (180) days following the Closing
Date, each
of the Company, Iview and Iview Parent hereby grants to the Purchaser
a
right of first refusal to provide any Additional Financing (as
defined
below) to be issued by the Company, Iview, Iview Parent and/or
any of
their respective Subsidiaries, subject to the following terms and
conditions. From and after the date hereof, prior to the incurrence
of any
additional indebtedness and/or the sale or issuance of any equity
interests of the Company, Iview, Iview Parent or any of their respective
Subsidiaries (other than (i) pursuant to options, warrants or other
obligations to issue shares outstanding on the date hereof as disclosed
to
Purchaser in writing; (ii) pursuant to options that may be issued
under
any employee incentive stock option and/or any qualified stock
option plan
adopted by the Company, Iview or Iview Parent; or (iii) securities
issued
pursuant to acquisitions or strategic transactions the primary
purpose of
which is not raising capital, so long as, in the case of this clause
(iii), such shares of Common Stock so issued (or securities convertible
into Common Stock so issued) are restricted and do not become freely
or
publicly traded in any respect prior to the two year anniversary
of the
issuance thereof) (each, an “Additional
Financing”),
the Company, Iview, Iview Parent and/or any of their respective
Subsidiaries, as the case may be, shall notify the Purchaser of
its
intention to enter into such Additional Financing. In connection
therewith, the Company, Iview, Iview Parent and/or the applicable
Subsidiary thereof shall submit a fully executed term sheet (a
“Proposed
Term Sheet”)
to the Purchaser setting forth the terms, conditions and pricing
of any
such Additional Financing (such financing to be negotiated on
“arm’s
length”
terms and the terms thereof to be negotiated in good faith) proposed
to be
entered into by the Company, Iview, Iview Parent and/or such Subsidiary.
The Purchaser shall have the right, but not the obligation, to
deliver its
own proposed term sheet (the “Purchaser
Term Sheet”)
setting forth the terms and conditions upon which Purchaser would
be
willing to provide such Additional Financing to the Company, Iview,
Iview
Parent and/or such Subsidiary. The Purchaser Term Sheet shall contain
terms no less favourable to the Company, Iview, Iview Parent and
/or the
Subsidiary than those outlined in Proposed Term Sheet. The Purchaser
shall
deliver such Purchaser Term Sheet within ten business days of receipt
of
each such Proposed Term Sheet. If the provisions of the Purchaser
Term
Sheet are at least as favourable to the Company, Iview Parent and/or
such
Subsidiary, as the case may be, as the provisions of the Proposed
Term
Sheet, the Company, Iview, Iview Parent and/or such Subsidiary
shall (a)
either enter into and consummate the Additional Financing transaction
outlined in the Purchaser Term Sheet or (b) choose not to consummate
such
Additional Financing, in which case the Company, Iview and Iview
Parent
shall be obligated to comply with the provisions of this Section
0
with respect to any future potential
financing.
|
|
(b)
|
The
Company, Iview and Iview Parent will not, and will not permit their
respective Subsidiaries to, agree, directly or indirectly, to any
restriction with any person or entity which limits the ability
of the
Purchaser to consummate an Additional Financing with the Company,
Iview,
Iview Parent or any of their respective
Subsidiaries.
|
|
6.14
|
Account
Agreements.
|
Forthwith
following the Closing Date, the Company, Iview and Iview Parent shall, and
shall
cause their respective Subsidiaries to, enter into agreements with the Purchaser
and each bank at which an account identified in Schedule 0
is
maintained, affording the Purchaser sole dominion and control over the account
upon the occurrence and during the continuation of an event of default under
the
Company Note and the Iview Note. The Company, Iview and Iview Parent shall,
and
shall cause their respective Subsidiaries to, enter into a comparable agreement
in relation to any account opened following the date hereof which may, in
the
ordinary course of business from time to time, have in excess of USD$50,000
on
deposit.
-
29 -
|
6.15
|
Dissolution
of A.C. Technical Systems
Inc.
|
The
Company shall dissolve A.C. Technical Systems Inc. on or before the date
that is
one (1) calendar year following the date hereof, and as of the date hereof
and
until it is dissolved, A.C. Technical Systems Inc. shall not conduct any
active
business or possess any material assets or property. The Company covenants
and
agrees that it shall not and it shall not allow any of the Guarantors to
transfer any of the collateral to A.C. Technical Systems Inc.
|
7.
|
Covenants
of the Purchaser.
|
The
Purchaser covenants and agrees with the Company as follows:
|
7.1
|
Confidentiality.
|
The
Purchaser on behalf of itself and its successors, assigns and Affiliates,
agrees
to use its best efforts to maintain as confidential all confidential information
provided to it by the Company, including, but not limited to, financial
statements, certificates, reports, agreements and information, financial
results, information that may constitute material non-public information
and
other information considered by the Company to be confidential and proprietary
and to use such information in compliance with all applicable laws, solely
for
the purpose of and as necessary to fulfill its obligations under this Agreement
and will not reveal it to any third party without the express written consent
of
the Company. The Purchaser will take appropriate measures to prevent its
agents,
employees and subcontractors from using or disclosing any such confidential
information, except as is expressly permitted under this Agreement. The
Purchaser agrees that it will not disclose, and will not include in any public
announcement, the name of the Company, unless expressly agreed to by the
Company
or unless and until such disclosure is required by law or applicable regulation,
and then only to the extent of such requirement and upon notice to the Company
.
|
7.2
|
Non-Public
Information.
|
The
Purchaser agrees not to effect any sales in the shares of the Company’s Common
Stock while in possession of material, non-public information regarding the
Company if such sales would violate applicable securities law.
|
7.3
|
Limitation
on Acquisition of Common Stock of the Company.
|
Notwithstanding
anything to the contrary contained in this Agreement, any Related Agreement
or
any document, instrument or agreement entered into in connection with any
other
transactions between the Purchaser and the Company, the Purchaser may not
acquire stock in the Company (including, without limitation, pursuant to
a
contract to purchase, by exercising an option or warrant, by converting any
other security or instrument, by acquiring or exercising any other right
to
acquire, shares of stock or other security convertible into shares of stock
in
the Company, or otherwise, and such contracts, options, warrants, conversion
or
other rights shall not be enforceable or exercisable) to the extent such
stock
acquisition would cause any interest (including any original issue discount)
payable by the Company to the Purchaser not to qualify as “portfolio
interest”
within
the meaning of Section 881(c)(2) of the Code, by reason of Section 881(c)(3)
of
the Code, taking into account the constructive ownership rules under Section
871(h)(3)(C) of the Code (the “Stock
Acquisition Limitation”).
The
Stock Acquisition Limitation shall automatically become null and void without
any notice to the Company upon the earlier to occur of either (a) the Company’s
delivery to the Purchaser of a Notice of Redemption (as defined in the Company
Note) or (b) the existence of an Event of Default (as defined in the Company
Note or any other note issued by the Company to the Purchaser) at a time
when
the average closing price of the common stock as reported by Bloomberg, L.P.
on
the Principal Market for the immediately preceding five trading days is greater
than or equal to the average closing price of the Company’s common stock as
reported by Bloomberg, L.P. in the Principal Market for the five trading
days
before Closing.
-
30 -
|
8.
|
Covenants
of the Company and Purchaser Regarding
Indemnification.
|
|
8.1
|
Company
Indemnification.
|
Each
of
the Company, Iview and Iview Parent agrees to indemnify, hold harmless,
reimburse and defend the Purchaser, each of the Purchaser’s officers, directors,
agents, affiliates, control persons, and principal shareholders, against
any
claim, cost, expense, liability, obligation, loss or damage (including
reasonable legal fees) of any nature, incurred by or imposed upon the Purchaser
which results, arises out of or is based upon: (i) any misrepresentation
by the
Company, Iview, Iview Parent or any of their respective Subsidiaries or breach
of any warranty by the Company, Iview, Iview Parent or any of their respective
Subsidiaries in this Agreement, any other Related Agreement or in any exhibits
or schedules attached hereto or thereto; or (ii) any breach or default in
performance by Company, Iview, Iview Parent or any of their respective
Subsidiaries of any covenant or undertaking to be performed by Company, Iview,
Iview Parent or any of their respective Subsidiaries hereunder, under any
other
Related Agreement or any other agreement entered into by the Company, Iview,
Iview Parent and/or any of their respective Subsidiaries and Purchaser relating
hereto or thereto.
|
8.2
|
Purchaser’s
Indemnification.
|
Purchaser
agrees to indemnify, hold harmless, reimburse and defend the Company and
Iview
and each of the Company’s and Iview’s officers, directors, agents, affiliates,
control persons and principal shareholders, at all times against any claim,
cost, expense, liability, obligation, loss or damage (including reasonable
legal
fees) of any nature, incurred by or imposed upon the Company and/or Iview
which
results, arises out of or is based upon: (i) any misrepresentation by Purchaser
or breach of any warranty by Purchaser in this Agreement or in any exhibits
or
schedules attached hereto or any Related Agreement; or (ii) any breach or
default in performance by Purchaser of any covenant or undertaking to be
performed by Purchaser hereunder, under any other Related Agreement; or any
other agreement entered into by the Company and/or Iview and Purchaser relating
hereto or thereto.
|
8.3
|
Offering
Restrictions.
|
Neither
the Company, Iview, Iview Parent nor any of their respective Subsidiaries
will,
prior to the full repayment of the Company Note and the Iview Note (together
with all accrued and unpaid interest and fees related thereto), (x) enter
into
any equity line of credit agreement or similar agreement or (y) issue, or
enter
into any agreement to issue, any securities with a variable/floating conversion
and/or pricing feature which are or could be (by conversion or registration)
free-trading securities (i.e. common stock subject to a registration
statement).
-
31 -
|
9.
|
Miscellaneous.
|
|
9.1
|
Governing
Law.
|
THIS
AGREEMENT AND EACH RELATED 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. ANY ACTION BROUGHT BY EITHER PARTY AGAINST THE OTHER
CONCERNING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND EACH RELATED
AGREEMENT SHALL BE BROUGHT ONLY IN THE STATE COURTS OF NEW YORK OR IN THE
FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK. BOTH PARTIES AND THE
INDIVIDUALS EXECUTING THIS AGREEMENT AND THE RELATED AGREEMENTS ON BEHALF
OF THE
COMPANY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS AND WAIVE TRIAL
BY
JURY. IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT OR ANY RELATED AGREEMENT
DELIVERED IN CONNECTION HEREWITH IS INVALID OR UNENFORCEABLE UNDER ANY
APPLICABLE STATUTE OR RULE OF LAW, THEN SUCH PROVISION SHALL BE DEEMED
INOPERATIVE TO THE EXTENT THAT IT MAY CONFLICT THEREWITH AND SHALL BE DEEMED
MODIFIED TO CONFORM WITH SUCH STATUTE OR RULE OF LAW. ANY SUCH PROVISION
WHICH
MAY PROVE INVALID OR UNENFORCEABLE UNDER ANY LAW SHALL NOT AFFECT THE VALIDITY
OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT OR ANY RELATED
AGREEMENT. IF ANY PARTY SHALL COMMENCE AN ACTION OR PROCEEDING TO ENFORCE
ANY
PROVISIONS HEREOF, THEN THE PREVAILING PARTY IN SUCH ACTION OR PROCEEDING
SHALL
BE REIMBURSED BY THE OTHER PARTY FOR ITS ATTORNEYS FEES AND OTHER COSTS AND
EXPENSES INCURRED WITH THE INVESTIGATION, PREPARATION AND PROSECUTION OF
SUCH
ACTION OR PROCEEDING.
|
9.2
|
Survival.
|
The
representations, warranties, covenants and agreements made herein shall survive
any investigation made by the Purchaser and the closing of the transactions
contemplated hereby to the extent provided therein. All statements as to
factual
matters contained in any certificate or other instrument delivered by or
on
behalf of the Company, Iview and/or Iview Parent pursuant hereto in connection
with the transactions contemplated hereby shall be deemed to be representations
and warranties by the Company, Iview and/or Iview Parent, as the case may
be,
hereunder solely as of the date of such certificate or instrument.
|
9.3
|
Successors.
|
Except
as
otherwise expressly provided herein, the provisions hereof shall inure to
the
benefit of, and be binding upon, the successors, heirs, executors and
administrators of the parties hereto and shall inure to the benefit of and
be
enforceable by each person who shall be a holder of the Securities from time
to
time. Purchaser may not assign its rights hereunder to a competitor of the
Company.
-
32 -
|
9.4
|
Entire
Agreement; Maximum Interest.
|
This
Agreement, the Related Agreements, the exhibits and schedules hereto and
thereto
and the other documents delivered pursuant hereto constitute the full and
entire
understanding and agreement between the parties with regard to the subjects
hereof and no party shall be liable or bound to any other in any manner by
any
representations, warranties, covenants and agreements except as specifically
set
forth herein and therein. Nothing contained in this Agreement, any Related
Agreement or in any document referred to herein or delivered in connection
herewith shall be deemed to establish or require the payment of a rate of
interest or other charges in excess of the maximum rate permitted by applicable
law. In the event that the rate of interest or dividends required to be paid
or
other charges hereunder exceed the maximum rate permitted by such law, any
payments in excess of such maximum shall be credited against amounts owed
by the
Company and Iview to the Purchaser and thus refunded to the Company or Iview,
as
applicable.
|
9.5
|
Severability.
|
In
case
any provision of the Agreement shall be invalid, illegal or unenforceable,
the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
|
9.6
|
Amendment
and Waiver.
|
|
(a)
|
This
Agreement may be amended or modified only upon the written consent
of the
Company, Iview, Iview Parent and the
Purchaser.
|
|
(b)
|
The
obligations of the Company, Iview and Iview Parent and the rights
of the
Purchaser under this Agreement may be waived only with the written
consent
of the Purchaser.
|
|
(c)
|
The
obligations of the Purchaser and the rights of the Company, Iview
and
Iview Parent under this Agreement may be waived only with the written
consent of the Company, Iview and Iview
Parent.
|
|
9.7
|
Delays
or Omissions.
|
It
is
agreed that no delay or omission to exercise any right, power or remedy accruing
to any party, upon any breach, default or non-compliance by another party
under
this Agreement or the Related Agreements, shall impair any such right, power
or
remedy, nor shall it be construed to be a waiver of any such breach, default
or
non-compliance, or any acquiescence therein, or of or in any similar breach,
default or non-compliance thereafter occurring. All remedies, either under
this
Agreement or the Related Agreements, by law or otherwise afforded to any
party,
shall be cumulative and not alternative.
-
33 -
|
9.8
|
Notices.
|
All
notices required or permitted hereunder shall be in writing and shall be
deemed
effectively given:
|
(a)
|
upon
personal delivery to the party to be
notified;
|
|
(b)
|
when
sent by confirmed facsimile if sent during normal business hours
of the
recipient, if not, then on the next business
day;
|
|
(c)
|
three
(3) business days after having been sent by registered or certified
mail,
return receipt requested, postage prepaid;
or
|
|
(d)
|
one
(1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of
receipt.
|
All
communications shall be sent as follows:
| If to the Company, Iview or Iview Parent, to: | Creative Vistas, Inc. |
| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, | |
| ▇▇▇▇▇ ▇-▇▇ | |
| ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ | |
| ▇▇▇ ▇▇▇ | |
| Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ | |
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | |
| Attention: Chief Financial Officer | |
| with a copy to (which shall not constitute notice): | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq. | |
| Torys LLP | |
| ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ | |
| ▇▇▇▇ ▇▇▇▇▇ | |
| ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
-
34 -
| If to the Purchaser, to: | Laurus Master Fund, Ltd. |
| c/o M&C Corporate Services Limited | |
| ▇.▇. ▇▇▇ ▇▇▇ ▇▇ | |
| ▇▇▇▇▇▇ House | |
| South Church Street | |
| ▇▇▇▇▇▇ Town | |
| Grand Cayman, Cayman Islands | |
| Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ | |
| with a copy to: | ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. |
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| ▇▇▇▇ ▇▇▇▇▇ | |
| ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ |
or
at
such other address as the Company, Iview, Iview Parent or the Purchaser may
designate by written notice to the other parties hereto given in accordance
herewith.
|
9.9
|
Attorneys’
Fees.
|
In
the
event that any suit or action is instituted to enforce any provision in this
Agreement or any Related Agreement, the prevailing party in such dispute
shall
be entitled to recover from the losing party all fees, costs and expenses
of
enforcing any right of such prevailing party under or with respect to this
Agreement and/or such Related Agreement, including, without limitation, such
reasonable fees and expenses of attorneys and accountants, which shall include,
without limitation, all fees, costs and expenses of appeals.
|
9.10
|
Titles
and Subtitles.
|
The
titles of the sections and subsections of this Agreement are for convenience
of
reference only and are not to be considered in construing this
Agreement.
|
9.11
|
Facsimile
Signatures; Counterparts.
|
This
Agreement may be executed by facsimile signatures and in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one agreement.
|
9.12
|
Broker’s
Fees.
|
Except
as
set forth on Schedule 11.12 hereof, each party hereto represents and warrants
that no agent, broker, investment banker, person or firm acting on behalf
of or
under the authority of such party hereto is or will be entitled to any broker’s
or finder’s fee or any other commission directly or indirectly in connection
with the transactions contemplated herein. Each party hereto further agrees
to
indemnify each other party for any claims, losses or expenses incurred by
such
other party as a result of the representation in this Section 9.12
being
untrue.
-
35 -
|
9.13
|
Construction.
|
Each
party acknowledges that its legal counsel participated in the preparation
of
this Agreement and the Related Agreements 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 or any
Related Agreement to favour any party against the other.
|
9.14
|
Currency
Indemnity.
|
If,
for
the purposes of obtaining judgment in any court in any jurisdiction with
respect
to this Agreement or any of the Related Agreements, it becomes necessary
to
convert into the currency of such jurisdiction (the “Judgment
Currency”)
any
amount due under this Agreement or under any of the Related Agreements in
any
currency other than the Judgment Currency (the “Currency
Due”),
then
conversion shall be made at the Exchange Rate at which the Purchaser is able,
on
the relevant date, to purchase the Currency Due with the Judgment Currency
prevailing on the Business Day before the day on which judgment is given.
In the
event that there is a change in the rate of Exchange Rate prevailing between
the
Business Day before the day on which the judgment is given and the date of
receipt by the Purchaser of the amount due, Company will, on the date of
receipt
by the Purchaser, pay such additional amounts, if any, or be entitled to
receive
reimbursement of such amount, if any, as may be necessary to ensure that
the
amount received by the Purchaser on such date is the amount in the Judgment
Currency which when converted at the rate of exchange prevailing on the date
of
receipt by the Purchaser is the amount then due under this Agreement or such
of
the Related Agreements in the Currency Due. If the amount of the Currency
Due
which the Purchaser is able to purchase is less than the amount of the Currency
Due originally due to it, Company shall indemnify and save the Purchaser
harmless from and against loss or damage arising as a result of such deficiency.
The indemnity contained herein shall constitute an obligation separate and
independent from the other obligations contained in this Agreement and the
Related Agreements, shall give rise to a separate and independent cause of
action, shall apply irrespective of any indulgence granted by the Purchaser
from
time to time and shall continue in full force and effect notwithstanding
any
judgment or order for a liquidated sum in respect of an amount due under
this
Agreement or any of the Related Agreements or under any judgment or
order.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
-
36 -
IN
WITNESS WHEREOF,
the
parties hereto have executed the SECURITIES
PURCHASE AGREEMENT
as of
the date set forth in the first paragraph hereof.
COMPANY: PURCHASER:
|
CREATIVE
VISTAS, INC.
|
LAURUS
MASTER FUND, LTD.
|
|||
|
Per:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Per:
|
/s/
▇▇▇▇▇▇ GRIN
|
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Name:
▇▇▇▇▇▇ Grin
|
|||
|
Title:
President
|
Title:
Director
|
|||
|
IVIEW
DIGITAL VIDEO SOLUTIONS INC.
|
||||
|
Per:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
||||
|
Title:
President
|
||||
|
IVIEW
HOLDING CORP.
|
||||
|
Per:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||||
|
Title:
President
|
||||
-
37 -
Exhibit
“A”
FORM
OF NOTE
Exhibit
“B”
FORM
OF IVIEW NOTE
Exhibit
“C”
FORM
OF OPTION
Exhibit
“D”
FORM
OF COMPANY WARRANT
Exhibit
“E”
CASH
COLLATERAL DEPOSIT LETTER
Exhibit
“F”
FORM
OF ESCROW AGREEMENT
Exhibit
“G”
FORM
OF OPINION
Exhibit
“H”
FORM
OF TAX OPINION