EXHIBIT 10.33
AMENDMENT NO. 2 TO
EXTENSION AGREEMENT
THIS AMENDMENT NO. 2 TO EXTENSION AGREEMENT (this "Amendment") is made by and
between Warp Technology Holdings, Inc. ("Warp") and Gupta Holdings, LLC
("Gupta") as of this 8th day of December, 2004.
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, 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. 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 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.
3. EXTENSION OF CLOSING DATE. Upon Gupta's receipt of the Note (as
defined below), (i) the "Closing Date" under the MIPA is hereby
amended from November 1, 2004 to January 3, 2005 and (ii) Section 6
of the Extension Agreement is hereby deleted in its entirety. For
the avoidance of doubt, the parties agree that (i) there is no
continuing breach under the MIPA due to any failure to close on or
before November 1, 2004, (ii) the Note is paid by Warp for the
extension of the Closing Date to January 3, 2005, and 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 obligations to close or otherwise), and (iii) the Note is
separate and apart from, and shall not be applied to, Warp's
satisfaction of the Cash Payment under the MIPA.
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4. NOTE. Warp agrees to issue to Gupta simultaneously herewith a note
(the "Note") pursuant to which Warp promises to pay Gupta the amount
of One Million Five Hundred Thousand Dollars ($1,500,000), or at
Gupta's election to convert such amount into shares of Warp's common
stock, par value $0.00001 par value, in either case in accordance
with the terms set forth in the Note. The Note will be in the form
of Exhibit A attached hereto.
5. 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.
6. 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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