EXHIBIT 4.38
AMENDMENT NO. 8 TO NOTE AND PREFERRED STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 8 TO NOTE AND PREFERRED STOCK PURCHASE AGREEMENT
(this "Amendment") is made as of April __, 2003, by and among EpicEdge, Inc., a
Texas corporation (the "Company"), and Edgewater Private Equity Fund III, L.P.,
a Delaware limited partnership ("Edgewater").
WHEREAS, the Company, Edgewater and certain other parties named therein
entered into that certain Note and Preferred Stock Purchase Agreement dated as
of April 16, 2002 (as amended from time to time, the "Purchase Agreement");
WHEREAS, pursuant to Section 9.5 of the Purchase Agreement, the
Purchase Agreement may be amended by the Company and the Purchaser Majority (as
defined therein); and
WHEREAS, the Company and the Purchaser Majority wish to amend the
Purchase Agreement pursuant to the terms set forth herein.
NOW, THEREFORE, for and in consideration of the premises and mutual
agreements herein contained and for the purposes of setting forth the terms and
conditions of this Amendment, the parties, intending to be bound, hereby agree
as follows:
1. Incorporation of the Agreement. All capitalized terms which
are not defined hereunder shall have the same meanings as set forth in the
Purchase Agreement. To the extent any terms and provisions of the Purchase
Agreement are inconsistent with the amendments set forth in Paragraph 2 below,
such terms and provisions shall be deemed superseded hereby. Except as
specifically set forth herein, the Purchase Agreement shall remain in full force
and effect and its provisions shall be binding on the parties hereto.
2. Amendments to the Purchase Agreement.
(a) The definition of Repayment Date set forth in Section
2.5 of the Purchase Agreement shall be amended to mean January 31, 2006.
(b) Section 2.7 of the Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
2.7 Conversion. At the Equity Closing, the
Outstanding Balance payable to each Lender shall be converted
by each Lender into shares of Series B Stock at a conversion
price equal to the Original Series B Purchase Price, other
than the unpaid portion of the Edgewater Special Debt, plus
accrued interest thereon, which amount shall, in the sole
discretion of Edgewater, be either (a) repaid in accordance
with the terms of the applicable Substitute Note, or (b) at
any time on or after the Equity Closing, but prior to the
Repayment Date, be converted into shares of Series B-1
Convertible Preferred Stock, par value $0.01 per share, of the
Company at a conversion price equal to $0.75 per share.
3. Effectuation. The amendments to the Purchase Agreement
contemplated by this Amendment shall be deemed effective immediately upon the
full execution of this Amendment and without any further action required by the
parties hereto. There are no conditions precedent or subsequent to the
effectiveness of this Amendment.
4. Fees and Expenses. The Company agrees to pay on demand all
costs and expenses of or incurred by Edgewater (including, but not limited to,
legal fees and expenses) in connection with the evaluation, negotiation,
preparation, execution and delivery of this Amendment.
5. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. One or more counterparts
of this Amendment may be delivered by facsimile, with the intention that
delivery by such means shall have the same effect as delivery of an original
counterpart thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 8 to
Note and Preferred Stock Purchase Agreement as of the date first written above.
EpicEdge, Inc.
(d/b/a EpicEdge), a Texas corporation
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
COO, CFO and Secretary
Edgewater Private Equity Fund III, L.P., a Delaware
limited partnership
By: Edgewater III Management, L.P.
Its: General Partner
By: Edgewater III, Inc.
Its: General Partner
By: /s/ Xxxx XxXxxxxxx
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Its: Partner
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