Exhibit 99.5
TO: The Board of Directors
WARP Technology Holdings, Inc.
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Chairman of the Board
In connection with our discussions concerning the resignation of Xxxx X.
Xxxxxxx ("Xxxx") from the Board of Directors of Warp Technology Holdings, Inc.
(the "Company"), the Company and Xxxx hereby unconditionally agree to the
following covenants, representations and warranties, in each case subject to the
terms of this agreement (the "Agreement").
Terms of resignation:
1. Effective resignation date is the date hereof (the "Resignation Date").
2. Through the Resignation Date, the Company has not been and is not
currently associated with any investor-sponsored legal actions or SEC (or
other) regulatory actions.
3. The Board of Directors hereby agrees to indemnify Xxxx against any
actions brought about either directly or indirectly by investors,
creditors, employees or other persons or entities in connection with WARP
Technology Holdings, Inc., which are based upon Xxxx's actions as a
director and/or officer of the Company to the fullest extent permitted by
the laws of the Sate of Nevada, federal and state securities laws, and
the Certificate of Incorporation and By-laws of the Company, all as
detailed in the Indemnification Agreement between the Company and Xxxx of
even date herewith. Such indemnification will cover Xxxx for actions for
the period in which he was a director and/or officer of the Company and
the Company's indemnification obligations shall end on December 1st 2014.
Such indemnification shall include any associated legal expenses.
4. The Board of Directors confirms that at the date of this Agreement, WARP
Technology Holdings, Inc. is not party to any legal action against Xxxx
and, unless information not currently known by the Board of Directors,
which warrants action, comes to its attention, agrees to not become a
party to any legal action against Xxxx. The Company retains its rights to
any and all counterclaims or defenses available to it should any action
be brought against the Company by Xxxx. The Company also reserves its
right to implead Xxxx should any action be brought against the Company
that is based upon the actions of Xxxx in his capacity as a director
and/or officer of the Company where the Company's indemnification
obligations would not be applicable.
5. Unless otherwise required by federal or state securities or corporate
law, or unless otherwise agreed to by Xxxx in writing, the Board of
Directors agrees that any requisite disclosure of Xxxx's resignation will
be made strictly through a Form 10-QSB (and subsequently in FORM 10K) and
the filing of this agreement as an exhibit to such Form 10-QSB, and not
via any form of press release, investor letter, or FORM 8K. The Company,
however, can announce the basic fact of Xxxx's resignation in the same
press release on Form 8-K which announces the appointment of any new
Board members.
6. The parties hereto agree to not participate in or cause to occur, any
disparagement, defamation, slander, or tortious interference with the
contracts and relationships of the other party, its respective
affiliates, officers, directors and shareholders.
Except as required under the federal or state securities laws or
corporate laws, each party hereto agrees to keep this agreement and all
information or documents (in any form, including emails) related to the other
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party (the "Confidential Information") strictly confidential and not to disclose
such Confidential Information to any person other than those of its directors,
officers, employees, attorneys, accountants and other professionals
("Representatives"), who need to know such Confidential Information for the
purpose of advising that party. The parties agree that they shall cause their
Representatives to keep all Confidential Information strictly confidential
without disclosure to any person not entitled to receive the Confidential
Information under this Agreement. The parties further agree that they will be
responsible for any disclosure of Confidential Information by their
Representatives that would constitute a breach of this Agreement if made by
them.
In the event that either party or any of their Representatives are
requested or required to disclose any Confidential Information hereunder in an
investigatory, legal, or regulatory proceeding, or in any public filing required
under the federal securities laws, including but not limited to filing this
agreement as an exhibit to the Company's Form 10-QSB, to the extent permitted
under any such law or regulation they will provide the other party with prompt
notice thereof and, if requested in writing by the other party, cooperate with
such other party in seeking a protective order or other appropriate remedy.
However, if no such order or remedy is obtained and after consultation with the
other party and its Representatives, the party and its Representatives may,
without liability hereunder, disclose in such proceeding or public filing that
portion of the Confidential Information that their legal counsel has advised
them is legally required to be disclosed.
The parties hereto understand and agree that money damages alone would
not be a sufficient remedy for any breach of this Agreement. In the event of any
breach of this Agreement by a party, the other party will be entitled, in
addition to any other remedies that we may have at law or in equity, to
injunctive relief or an order of specific performance. No failure or delay by
the other party in exercising any right, power or privilege hereunder will
operate as a waiver thereof, nor will any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder. The parties agree to waive, and to use
their best efforts to cause their Representatives to waive, any requirement for
securing or posting of any bond in connection with such remedy.
This Agreement (i) will be interpreted, constructed and its effect shall
be governed and construed in all respects in accordance with the Laws of the
State of New York and federal law, without regard to the conflict of laws
principles thereof and the parties hereby submit to the exclusive jurisdiction
of the state and federal courts of the State of New York, (ii) shall be binding
upon each party, their affiliates and their respective legal representatives,
successors and assigns and (iii) may not be amended, supplemented, waived or
terminated except by written agreement of both parties hereto.
This Agreement represents the entire understanding between the parties
with respect to the subject matter hereof. With the exception of the
Indemnification Agreement between the Company and Xxxx of even date herewith, no
contemporaneous or prior written or oral agreement shall be construed to alter,
repeal or modify this Agreement.
If the foregoing correctly states our understanding, please sign and
return one counterpart hereof to the undersigned, whereupon this Agreement will
become a binding agreement between us in accordance with its terms.
Very truly yours,
/s/ Xxxx Xxxxxxx
Xxxx X. Xxxxxxx
Date: January 28th 2004
AGREED AND ACCEPTED:
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Chairman of the Board
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