EXHIBIT 4.2
AMENDMENT NO. 1
TO
SECURITIES PURCHASE AGREEMENT
Reference is hereby made to the Securities Purchase Agreement (the
"AGREEMENT") made and entered into as of December 13, 2002, by and among
netGuru, Inc., a Delaware corporation (the "COMPANY") and Laurus Master Fund,
Ltd., a Cayman Islands company (the "PURCHASER"). Terms used herein and not
otherwise defined herein shall have the meaning set forth in the Agreement.
WHEREAS, the parties desire to amend Section 8.4 of the Agreement; and
WHEREAS, in consideration of their mutual promises and covenants set
forth herein and in the Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Pursuant to Section 12.6 of the Agreement, and effective as of
December 13, 2002, the parties amend and restate Section 8.4 of the Agreement in
its entirety as follows:
8.4 NASDAQ APPROVAL. The Company and the Purchaser agree that, until
the Company either obtains shareholder approval of the issuance of the
Securities, or an exemption from NASDAQ's corporate governance rules as they may
apply to the Securities, and an opinion of counsel reasonably acceptable to the
Purchaser that NASDAQ's corporate governance rules do not conflict with nor may
result in a delisting of the Company's common stock from the NASDAQ National
Market (the "APPROVAL") upon the conversion of the Notes or the exercise of the
Warrant, the Purchaser may not receive, whether upon conversion of the Notes or
upon exercise of the Warrant, more than the number of common shares that would
increase the Purchaser's total holdings of the Company's common stock to greater
than 19.9% of the shares of Company's common stock outstanding on the Closing
Date. The Company covenants to attempt to obtain the Approval required pursuant
to NASDAQ's corporate governance rules to allow conversion of all the Notes and
interest thereon upon written request of the Purchaser (the "TRIGGER DATE"). The
Company further covenants to file the preliminary proxy statement relating to
the Approval with the Commission on or before thirty days after the Trigger Date
("PROXY FILING DATE"). The Company further covenants to take all steps necessary
to require shareholders to vote on the Approval no later than ninety days after
the Trigger Date ("APPROVAL DATE").
2. There are no other modifications to the Agreement.
Dated: March 19, 2003 March 19, 2003
AGREED TO AND ACCEPTED AGREED TO AND ACCEPTED
BY NETGURU, INC. BY LAURUS MASTER FUND, LTD.
By: /s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxx Grin
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Name: Xxxxx Xxxxxxxxxx Name: Xxxxx Grin
Title: President Title: Director
