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EXHIBIT 10.33
WAREFORCE
0000 X. XXXXXXXXX XXX.
XXXXXXXXX XXXXX, XX 00000
January 3, 2001
Triton Private Equities L.P.
c/o Xxxx X. Xxxxxxx
220 Executive Center
000 X. Xxxxxx Xx.
Xxxxxxxx XX 00000
Dear Xx. Xxxxxxx:
This letter sets forth the oral agreement that was reached between Triton
Private Equities L.P. ("Triton"), Xxxxxxxxx.xxx, Inc. ("Wareforce") and Xxxx
Xxxxxxxx on or about November 13, 2000.
Subject to the terms of this letter agreement, Triton has agreed to waive
Wareforce's obligation to pay the liquidated damages that accrue through
February 12, 2001 under Section 2(b) of the Registration Rights Agreement dated
May 2, 2000 between Triton and Wareforce (the "RRA"). Under Section 2(b) of the
RRA, Wareforce is obligated to pay specified liquidated damages to Triton if
certain conditions relating to the registration of shares of Wareforce common
stock have not been met by a certain date. Because the registration statement
provided for under the RRA has not been filed with or declared effective by the
Securities Exchange Commission, Wareforce is currently in default of Section
2(b) of the RRA and is obligated to pay Triton liquidated damages under such
section.
In consideration of Triton waiving Wareforce's obligation to pay the
liquidated damages that accrue through February 12, 2001 for the default
mentioned above, Xx. Xxxxxxxx has agreed to place into escrow in favor of Triton
57,200 shares of Wareforce common stock which he personally holds (the "Escrowed
Shares"). Both Triton and Xx. Xxxxxxxx agree that Interwest Transfer Company
("Interwest") will be the escrow agent for this transaction, and Interwest has
agreed to act in such capacity.
If Wareforce cures its default under Section 2(b) of the RRA by February
12, 2001, the Escrowed Share will revert back to Xx. Xxxxxxxx and Wareforce will
not be obligated to pay any liquidated damages under Section 2(b) of the RRA for
its current default under such section.
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If Wareforce does not cure its default under Section 2(b) of the RRA by
February 12, 2001, Xx. Xxxxxxxx shall release the Escrowed Shares to Triton and
Wareforce will be obligated to pay any liquidated damages under Section 2(b) of
the RRA that accrue beginning February 12, 2001.
Except as set forth above, Triton does not waive any other breach or
default by Wareforce under any agreement between Triton and Wareforce.
In the event of a dispute between the parties hereto, Interwest, as the
escrow agent, shall be entitled, at its sole discretion, to interplead the
Escrowed Shares and/or cash or other escrowed items, to any federal court whose
districts encompass any part of the City of New York or any state court of the
State of New York sitting in the City of New York. The parties hereto agree to
hold Interwest, its officers, agents and employees harmless for such action. In
the event that Interwest determines that it is prudent to file the
interpleader, Wareforce agrees to pay all costs, reasonable attorney's fees and
expenses, incurred by Interwest, for taking such action.
This letter agreement shall be governed by and interpreted in accordance
with the laws of the State of New York. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any part of the
City of New York or the state courts of the State of New York sitting in the
City of New York in connection with any dispute arising under this Agreement and
hereby waives, to the maximum extent permitted by law, any objection including
any objection based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions.
No modification of this letter shall be deemed effective unless signed in
writing by each of the parties hereto. Wareforce shall pay all expenses
incurred by Interwest.
Xx. Xxxxxxxx hereby directs Interwest to place the Escrowed Shares into
escrow. Interwest agrees to release the Escrowed Shares to Triton on February
13, 2001 unless prior to such date it receives written confirmation that the
registration statement provided for in the RRA has been declared effective by
the Securities Exchange Commission.
[SIGNATURE PAGE FOLLOWS]
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Please sign this letter where indicated below to evidence your agreement to
these terms, and return this letter to Xxx Xxxxxx via facsimile at (312)
725-2258, whereupon this letter will become a binding agreement between us.
XXXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: CEO
AGREED:
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Interwest Transfer Company
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: V.P.
Triton Private Company L.P.
By: Triton Capital LLC
(General Partner)
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Managing Director
