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EXHIBIT 10.35
AMENDMENT NO. 1
TO
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS
AMENDMENT NO. 1 TO MEMBERSHIP INTEREST PURCHASE AGREEMENT (this
"Amendment") is made and entered into as of
January __, 2005, by and between
Warp Technology Holdings, Inc. ("Warp") and
Gupta Holdings, LLC ("Gupta").
Capitalized terms used but not otherwise
defined herein shall be deemed to have
the meanings given to such terms by the
MIPA or the Extension Agreement (as such
terms are defined below).
WITNESSETH
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 related
Extension Agreement dated September 27, 2004
(as amended by that certain Amendment No. 1
to Extension Agreement made by and
between ISIS and Gupta on October 13, 2004,
that certain Amendment No. 2 to
Extension Agreement made by and between
Warp and Gupta on December 8, 2004 and
that certain Amendment No. 3 to Extension
Agreement made by and between Warp and
Gupta on January 3, 2005, the "Extension
Agreement");
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);
WHEREAS,
Warp and Gupta wish to amend the MIPA with this Amendment as
provided herein; and
WHEREAS,
ISIS wishes to acknowledge and agree to such amendments for
purposes of its liabilities under Section
8.6 of the MIPA.
NOW,
THEREFORE, in consideration of the foregoing premises and the
respective covenants and agreements
hereinafter contained, the parties hereby
agree as follows:
AGREEMENT
I.
AMENDMENT
OF MIPA.
The MIPA is hereby amended as follows:
A. Section 2.3 "The Purchase Price" is hereby amended to read in
its
entirety as follows:
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"The Purchase Price. The purchase price (items (1) - (5)
collectively, the "Purchase Price") for the
Membership Interests shall equal:
(1) Fifteen Million Seven Hundred Fifty Thousand Dollars
($15,750,000) (the "Cash Payment"), against
which the Two Million Two Hundred
Fifty Thousand Dollars ($2,250,000)
previously paid to Seller as a
Non-Refundable Fee pursuant to the
Extension Agreement shall be credited;
(2) The $750,000 Senior Secured Promissory Note and related
Warrant to Purchase Common Stock, each
issued by Warp to Gupta, and the related
Senior Note and Warrant Purchase Agreement,
Senior Security Agreement, Senior
Subsidiary Security Agreement, Collateral
Agency Agreement, Intercreditor and
Subordination Agreement, and Senior
Guaranty, all of even date herewith;
(3) The $1,500,000 Subordinated Secured Promissory Note issued
by Warp to Gupta as an amendment and
restatement of the outstanding $1,500,000
Convertible Demand Note issued from Warp to
Gupta on December 8, 2004 (the
"Prior Note"), which Prior Note shall no
longer be outstanding as of the
Closing, and the related Subordinated Note
and Warrant Purchase Agreement,
Subordinated Security Agreement,
Subordinated Subsidiary Security Agreement,
Collateral Agency Agreement, Intercreditor
and Subordination Agreement, and
Subordinated Guaranty, all of even date
herewith;
(4) The $2,000,000 Convertible Promissory Note issued by Warp
to Gupta and convertible into shares of
Series C Preferred Stock of Warp and a
Warrant to Purchase Common Stock of Warp,
and the related Series C Subscription
Agreement and Investors' Agreement, all of
even date herewith; and
(5) The $1,000,000 Secured Promissory Note issued by ISIS to
Gupta and the related Security Agreement,
both of even date herewith.
At Closing, Purchaser shall pay to Seller
Thirteen Million Seven Hundred Fifty
Thousand Dollars (13,500,000),
consisting
