Exhibit 10.40
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AMENDMENT TO
AND ASSIGNMENT AND ASSUMPTION OF
LETTER AGREEMENT
THIS AMENDMENT TO AND ASSIGNMENT AND ASSUMPTION OF LETTER AGREEMENT
(the "Amendment and Assignment") is made effective as of July 2, 2002, by and
among CATEGORY 5 TECHNOLOGIES, INC., a Nevada corporation (the "Company"), SBI
E2-Capital USA Ltd. ("SBI E2"), and SBI-USA, LLC ("SBI-USA").
RECITALS:
WHEREAS, by letter dated July 2, 2002, the Company and XXX X0 entered
into that certain agreement, a copy of which is attached hereto as Annex I (the
"Letter Agreement"), pursuant to which the Company engaged XXX X0 to provide
financial services and a fairness opinion to the Company in connection with the
merger of the Company with and into MindArrow Acquisition Corp. (the "Merger").
WHEREAS, the Company and SBI E2 desire to amend the Letter Agreement to
delete all references in the Letter Agreement to the stock fee equal to 1/2% of
the transaction value of the Merger, as more fully set forth in this Amendment
and Assignment.
WHEREAS, SBI E2 desires to assign to SBI-USA, and SBI-USA desires to
assume, all of SBI E2's rights, title and interest in and to the Letter
Agreement, including but not limited to all contractual obligations of SBI E2
arising under the Letter Agreement.
WHEREAS, the Company desires to consent to the assignment of all of SBI
E2's rights, title and interest in and to the Letter Agreement to SBI-USA, and
the assumption by SBI-USA of all of SBI E2's contractual obligations arising
thereunder.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Company, SBI E2 and SBI-USA agree
as follows:
1. Amendment
(a) Amendment. Section 5 of the Letter Agreement is hereby deleted in
its entirety and replaced with the following provision:
"5. For our services in connection with serving as Advisor, the
Company shall pay, or cause to be paid, to SBI a cash fee equal to
$175,000 in the following increments:
a. $25,000 in cash upon acceptance and execution of this
agreement;
b. $50,000 in cash by July 15, 2002; and
c. $100,000 in cash upon the later of (i) delivery of the
fairness opinion and (ii) closing of the merger agreement."
(b) No Other Amendment. Except as expressly amended pursuant to this
Amendment and Assignment, the terms of the Letter Agreement shall remain in full
force and effect.
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2. Assignment and Assumption
(a) Assignment and Assumption of Letter Agreement. SBI E2 hereby
transfers, conveys and assigns to SBI-USA, and SBI-USA hereby assumes, all of
SBI E2's rights, title and interest in and to the Letter Agreement, and SBI-USA
hereby agrees to perform and fully discharge all of SBI E2's obligations and
liabilities arising thereunder.
(b) Defenses and Claims. Nothing contained herein shall be deemed to
deprive SBI-USA of any defenses, setoffs, or counterclaims which SBI E2 may
have, had, or shall have with respect to the Letter Agreement (collectively,
"Defenses and Claims"). SBI E2 hereby transfers, conveys and assigns to SBI-USA
all Defenses and Claims.
(c) Consent of the Company. The Company hereby consents to the
assignment of all of SBI E2's rights, title and interest in and to the Letter
Agreement to SBI-USA, and the assumption by SBI-USA of all SBI E2's obligations
and liabilities arising thereunder, pursuant to the terms of this Amendment and
Assignment.
3. Miscellaneous
(a) Counterparts. This Amendment and Assignment may be executed in one
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same document.
(b) Applicable Law. This Amendment and Assignment shall be governed by,
and construed and interpreted in accordance with, the laws of the State of
California, without giving effect to the conflict of laws rules thereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the Company, SBI E2 and SBI-USA have executed and
delivered this Amendment and Assignment as of the day and year first above
written.
CATEGORY 5 TECHNOLOGIES, INC.
a Nevada corporation
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: CEO
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SBI E2-CAPITAL USA, LTD.
/s/ Xxxxxxx XxXxxxxx
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Name: Xxxxxxx XxXxxxxx
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Title: Vice President
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SBI-USA, LLC
/s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
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Title: Senior Vice President
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ANNEX I
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Letter Agreement
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