Mail Stop 4-6
May 6, 2005
Mr. Rodney A. Bienvenu, Jr.
Chairman and Chief Executive Officer
WARP Technology Holdings, Inc.
151 Railroad Avenue
Greenwich, Connecticut 06830
Re: WARP Technology Holdings, Inc.
Registration Statement on Form S-2 filed April 5, 2005
File No. 333-123864
Dear Mr. Bienvenu:
This is to advise you that we have limited our review of the
above registration statement to the matters addressed in the
comments
below. No further review of the registration statement has been
or
will be made. All persons who are by statute responsible for the
adequacy and accuracy of the registration statement are urged to
be
certain that all information required under the Securities Act of
1933 has been included.
Where indicated, we think you should revise your document in
response to these comments. If you disagree, we will consider
your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Form S-2
Warp Technology Holdings, Inc.
Subsequent Events, p. 19-21
1. Please provide additional disclosure with respect to the
circumstances under which Mr. Bottazzi resigned. We also note
that
Mr. Sisko has been appointed to chief operating ifficer-a position
previously held by Mr. Liss. Please also disclose the
circumstances
with respect to Mr. Liss`s termination as chief operating officer.
In your response letter, provide us with your analysis supporting
your apparent view that Mr. Liss`s termination as chief operating
officer did not trigger a filing obligation under Item 5.02 of
Form
8-K. If you are relying on instruction B.3 to Form 8-K in
reaching
this conclusion, please tell us where any required information was
previously reported.
2. Please explain the reason for the vacancies on your board of
directors. Did the prior directors resign following the Gupta
transaction? It does not appear that a Form 8-K was filed to
report
the departure of three directors. Please explain. In addition,
please provide a brief description of any arrangement or
understanding, if any, between the new director and any other
persons, naming such persons, pursuant to which such director was
selected as a director. Please also disclose the committees of
the
board of directors to which the new director has been named, as
applicable. Please refer to Item 5.02(d) of Form 8-K.
3. Please confirm that no disclosure pursuant to Items 404(a) and
(b)
of Regulation S-B is necessary with respect to your new officers
and
directors and that there are no employment agreements or other
specific compensation arrangements with such officers and
directors.
In addition, please ensure that your disclosure conforms to the
requirements of Items 401(a)(4), (a)(5) and (c) of Regulation S-B.
We note, for example, that your disclosure does not appear to
concisely account for the past five years with respect to the
business experience of your new officers and directors.
4. If applicable, please provide disclosure explaining the
reason(s)
for or cause(s) resulting in the changes generally in your
management
and board ranks.
5. Please expand your disclosure to discuss the reasons for and
terms
of your acquisition of Gupta Technologies. We note that the
acquisition resulted in Gupta representing more than 90 percent of
your revenue. Please also provide a brief and concise description
of
the financing arrangements entered into with respect to your
acquisition and the material terms thereof. We note your
disclosure
with respect to the same in your recent information statement on
Schedule 14C filed on March 11, 2005.
Issuance of Preferred Stock and Warrants to Selling Stockholders,
pp.
30-31
6. Please clarify your disclosure to more thoroughly describe the
underlying transactions that resulted in the issuances of the
Series
C preferred, the warrants and the subordinated notes issued on
January 31, 2005. Explain why the series C preferred shares,
warrants and subordinated notes were issued and the basis on which
those classes were issued to different investors. You mention
bridge
financing notes and the "Seller" without further elaboration. Why
did you enter into the senior note agreement and what was the
consideration received? Expand the "Description of Securities"
section on page 34 to provide a materially complete description of
those subordinated notes? Pursuant to Item 601(b)(10) of
Regulation
S-B, please also file the material agreements related to your
Series
C preferred stock and the financing arrangements entered into with
respect to your acquisition or otherwise disclosed in this
section.
Incorporation of Certain Information by Reference, p. 36
7. You have incorporated future filings under Section 13(a),
13(c),
14 or 15(d) of the Exchange Act. Please note that in contrast to
the
requirements of Form S-3, Form S-2 does not authorize
incorporation
of future filings under the Exchange Act. Please revise.
Item 16. Exhibits
8. Please include the separation agreement with Mr. Bottazzi
pursuant
to Item 601(b)(10)(iii) of Regulation S-K.
Form 10-KSB for the Year Ended June 30, 2004
Item 8A. Controls and Procedures.
9. Pursuant to Rule 13a-15(b) of the Exchange Act, your evaluation
as
to the effectiveness of your disclosure controls and procedures
should have been provided at period end rather than within 90 days
prior to the date of the report. We further note that such
evaluation requires the participation of your principal financial
officer to which you have not specifically referred, though, you
have
referred specifically to your principal executive officer and
principal operating officer. Please supplementally tell us
whether
your effectiveness determination included the participation of
your
principal financial officer and whether it applies with respect to
the end of the period covered by your Form 10-KSB as well as your
subsequently filed Forms 10-QSB. In addition, please advise us
how
you intend to address the concern raised by this comment in future
filings?
10. Your disclosure suggests that your disclosure controls and
procedures are effective, but only to the extent that they "timely
alert[] [your officers] to material information relating to [you],
including [your] consolidated subsidiaries, that is required to be
included in [your] periodic SEC filings." This text does not
address
the effectiveness of your disclosure controls and procedures with
respect to whether information required to be disclosed is
recorded,
processed, summarized and reported on a timely basis or whether
such
information is made known to your officers to allow timely
decisions
regarding required disclosure. As of June 30, 2004, September 30,
2004 and December 31, 2004, please supplementally tell us whether
your disclosure controls and procedures, as defined in Rule 13a-
15(e)
of the Exchange Act, were effective. In addition, please advise
us
how you intend to address the concern raised by this comment in
future filings?
11. We note your disclosure that "there were no significant
changes
in internal controls or in other factors that could significantly
affect internal controls." Please note that Item 308 of
Regulation
S-B requires the disclosure of "any" change in your internal
controls
that occurred during your last fiscal quarter that has "materially
affected, or is reasonably likely to materially affect," your
internal controls. In light of the foregoing, please
supplementally
advise us with respect to changes in your internal controls during
the periods ended June 30, 2004, September 30, 2004 and December
31,
2004. In addition, please advise us how you intend to address the
concern raised by this comment in future filings?
* * * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amendment and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts related to your disclosure, they are
responsible for the accuracy and adequacy of the disclosures they
have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert the staff comments and the
declaration
of effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of your registration statement as a confirmation of
the fact that those requesting acceleration are aware of their
respective responsibilities under the Securities Act and the
Securities Exchange Act of 1934, as amended, as they relate to the
proposed public offering of the securities specified in the above
registration statement. We will act on the request and, pursuant
to
delegated authority, grant acceleration of the effective date.
We direct your attention to Rule 461 regarding requesting
acceleration of a registration statement. Please allow adequate
time
after the filing of any amendment for further review before
submitting a request for acceleration. Please provide this
request
at least two business days in advance of the requested effective
date.
You may contact Daniel Lee at (202) 551-3477 with any
questions. If you need further assistance, you may contact me at
(202) 551-3462 or Barbara Jacobs, Assistant Director, at (202)
551-
3730.
Sincerely,
Mark P. Shuman
Branch Chief - Legal
cc: Via Facsimile
Ernest C. Mysogland, Esq.
Chief Legal Officer
WARP Technology Holdings, Inc.
Telephone: (203) 422-2950
Facsimile: (203) 422-5329
R. Scott Beach
Day Berry & Howard LLP
One East Putnam Avenue
Greenwich, Connecticut 06830
Telephone: (203) 862-7824
Facsimile: (203) 862-7801