EXHIBIT 10.34
AMENDMENT NO. 3 TO
EXTENSION AGREEMENT
THIS AMENDMENT NO. 3 TO EXTENSION AGREEMENT (this "Amendment") is made by and
between Warp Technology Holdings, Inc. ("Warp") and Gupta Holdings, LLC
("Gupta") as of this 3rd day of January, 2005.
WHEREAS, ISIS Capital Management, LLC ("ISIS") and Gupta are parties to that
certain Membership Interest Purchase Agreement dated September 2, 2004 (the
"MIPA") and to that certain Extension Agreement dated September 27, 2004 (as
amended by that certain Amendment No. 1 to Extension Agreement made by and
between ISIS and Gupta as of the 13th day of October, 2004, and by that certain
Amendment No. 2 to Extension Agreement made by and between Warp and Gupta as of
the 8th day of December, 2004, the "Extension Agreement"); and
WHEREAS, ISIS has assigned all of its rights as the Purchaser under the MIPA to
Warp, and Warp has assumed all of the obligations of ISIS as the Purchaser under
the MIPA (provided that ISIS remains liable to the extent set forth in Section
8.6 of the MIPA); and
WHEREAS, Warp and Gupta wish to amend the Extension Agreement as follows:
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS. All capitalized terms used in this Agreement but not
otherwise defined herein shall have the meaning given them in the
MIPA.
2. NON-REFUNDABLE FEE. On or before January 4, 2005, Warp agrees to pay
to Gupta two hundred and fifty thousand dollars ($250,000). Pursuant
to Section 2 of the Extension Agreement, ISIS has paid Gupta one
million dollars ($1,000,000) to extend the Closing Date under the
MIPA to October 15, 2004. Pursuant to the prior Section 6 of the
Extension Agreement, Warp has paid Gupta one million dollars
($1,000,000) to extend the Closing Date under the MIPA to November
1, 2004. The term "Non-Refundable Fee" shall refer to the one
million dollars ($1,000,000) initially paid by ISIS, plus the
incremental one million dollars ($1,000,000) paid by Warp for such
incremental extension, plus the incremental two hundred and fifty
thousand dollars ($250,00) payable by Warp for such further
incremental extension.
3. EXTENSION OF CLOSING DATE. Upon Gupta's receipt of the two hundred
and fifty thousand dollars ($250,000) referred to in section 2, ,
the "Closing Date" under the MIPA is hereby amended from January 3,
2005 to January 20, 2005. Said $250,000 amount is not refundable to
Warp for any reason whatsoever, including without limitation the
non-occurrence of a Closing under the MIPA (provided that Warp is
not hereby waiving any rights under the MIPA concerning Gupta's
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obligations to close or otherwise); however, said amount shall be
applied to Warp's satisfaction of the Cash Payment under the MIPA.
4. NO OTHER AMENDMENTS. In the event of any conflict with the Extension
Agreement and this Amendment, this Amendment shall control. Except
as set forth in this Amendment, the Extension Agreement shall in all
other respects remain unchanged.
5. MISCELLANEOUS. Sections 9 (Governing Law; Jurisdiction) and Section
10 (Miscellaneous) of the Extension Agreement shall apply to this
Amendment
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IN WITNESS WHEREOF, the parties hereto have signed this Amendment as of the date
first set forth above.
WARP TECHNOLOGY HOLDINGS, INC.
By: /s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: President
GUPTA HOLDINGS, LLC
By: /s/ Xxx X. Xxxxxxxx
Name: Xxx X. Xxxxxxxx
Title: Vice President & Secretary
ACKNOWLEDGED AND AGREED:
ISIS CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Managing Member
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