FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
FIRST
AMENDMENT TO
This
First Amendment to Stock Purchase Agreement (this “Amendment”)
is
entered into as of July [ _ ], 2007 by and between Southridge Technology Group,
Inc., a Delaware corporation (“Pubco”)
that
will acquire all of the issued and outstanding capital stock of RxElite Holdings
Inc., a Delaware corporation (“RxElite”)
and
succeed to the business of RxElite as its sole line of business (on a combined,
post-acquisition basis, Pubco, and its subsidiary, RxElite, are collectively
referred to as “Seller”),
and
the Buyers (as defined below). This Amendment amends that Stock Purchase
Agreement (the “Agreement”),
dated
as of January 19, 2007 by and among RxElite and the persons and entities listed
on Exhibit
A
thereto
(each a “Buyer”
and
collectively, the “Buyers”).
Capitalized terms not otherwise defined herein shall have the meanings given
in
the Agreement.
RECITALS
WHEREAS,
pursuant
to the Agreement, RxElite has previously issued to each Buyer the Securities
listed next to such Buyer’s name on Exhibit
A
thereto;
WHEREAS,
certain
purchasers acquired from RxElite common stock and warrants to purchase shares
of
the common stock in a subsequent private offering of its securities pursuant
to
certain Stock Purchase Agreements dated as of July [ _ ], 2007 (the
“New
Purchase Agreements”);
WHEREAS,
the
Buyers and RxElite wish to amend the Agreement to provide substantially the
same
terms to the Buyers as are contained in the New Purchase Agreements effective
with and conditioned upon the acquisition referenced above such that Pubco
shall
assume all obligations and rights of RxElite hereunder; and
WHEREAS,
Section
8.3 of the Agreement provides that it may be amended with the written consent
of
each party thereto.
NOW,
THEREFORE, in
consideration of the foregoing and of the mutual promises and covenants set
forth herein, the parties agree as follows:
1. DELETION
OF SECTION 1.3.
Section
1.3 of the Agreement is hereby deleted in its entirety.
2. NEW
SECTION 4.16.
New
Section 4.16 of the Agreement is hereby inserted and reads in its entirety
as
follows:
Covenants
of Purchasers Not to Short Stock.
The
Buyer, on behalf of itself and its affiliates, hereby covenants and agrees
not
to, directly or indirectly, offer to “short sell”, contract to “short sell” or
otherwise “short sell” the securities of Seller, including, without limitation,
shares of Common Stock that will be received as a result of the exercise of
the
Warrants.
3. AMENDMENT
OF SECTION 8.2.
Section
8.2(i) of the Agreement is hereby amended to replace Xxxxx & Partners, P.C.
with Xxxxxxxx & Xxxxxxxx LLP as a party to whom a copy of all notices to the
Seller shall be sent, at the following address:
Xxxxxxxx
Xxxxxxxx
00000
Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxx, Xxxxxxxxxx 00000
Attention:
Xxx xx Xxxxx
Facsimile:
(000) 000-0000
4. AMENDMENT
OF SECTION 8.3.
Section
8.3 of the Agreement is hereby deleted and replaced in its entirety by the
following:
Entire
Agreement; Exercise of Rights.
(a) This
Agreement (including the Appendices and Exhibits hereto) embodies the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof. No amendment or waiver of any provision of this Agreement, or
consent to the departure by any party from any such provision, shall be
effective unless it is in writing and signed by Seller and the holders of a
majority of the Securities sold hereunder. Any such waiver or consent shall
be
effective only in the specific instance and for the specific purpose for which
given.
(b) No
failure on the part of a party to exercise, and no delay in exercising, any
right under this Agreement, or any agreement contemplated hereby, shall operate
as a waiver hereof by such party, nor shall any single or partial exercise
of
any right under this Agreement, or any agreement contemplated hereby, preclude
any other or further exercise thereof or the exercise of any other
right.
5. AMENDMENT
OF SECTION 8.4.
Section
8.4 of the Agreement is hereby amended such that all references to the “State of
Idaho” shall be replaced with the “State of New York” and all references to the
“City of Boise, Idaho” shall be replaced with the “County of New York, State of
New York.”
6. AMENDMENT
OF SECTION 8.6.
Section
8.6 of the Agreement is hereby deleted and replaced in its entirety by the
following:
Acknowledgment;
Waiver of Conflicts.
Each
Buyer acknowledges that: (a) it has read this Agreement; (b) it has been
represented in the preparation, negotiation and execution of this Agreement
by
legal counsel of its own choice or has voluntarily declined to seek such
counsel; and (c) it understands the terms and consequences of this Agreement
and
is fully aware of the legal and binding effect of this Agreement. Each Buyer
understands that RxElite has been represented in the preparation, negotiation
and execution of this Agreement by Xxxxxxxx & Xxxxxxxx LLP, counsel to
RxElite, and that Xxxxxxxx & Xxxxxxxx LLP has not represented any Buyer or
any stockholder, director or employee of Seller or any Investor in the
preparation, negotiation and execution of this Agreement. Each Buyer and Seller
acknowledges that Xxxxxxxx & Xxxxxxxx LLP has in the past represented and is
now or may in the future represent one or more Buyers or their affiliates in
matters unrelated to the transactions contemplated by this Agreement, including
the representation of such Buyers or their affiliates in matters of a nature
similar to those contemplated by this Agreement. Each Buyer and Seller hereby
acknowledges that it has had an opportunity to ask for and has obtained
information relevant to such representation, including disclosure of the
reasonably foreseeable adverse consequences of such representation, and hereby
waives any conflict arising out of such representation with respect to the
matters contemplated by this Agreement.
2
7. DELETION
OF SECTION 8.7.
Section
8.7 of the Agreement is hereby deleted in its entirety.
8. NO
OTHER AMENDMENT.
Except
as specifically amended by this Amendment, the Agreement shall continue in
full
force and effect. In the event of any conflict between the terms of this
Amendment and the Agreement, the terms of this Amendment shall govern and
control.
9. GOVERNING
LAW. This
Amendment shall be governed by and construed under the laws of the State of
New
York as applied to agreements among New York residents entered into and to
be
performed entirely within New York.
10. COUNTERPARTS.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
11. SEVERABILITY.
If one
or more provisions of this Amendment are held to be unenforceable under
applicable law, such provision shall be excluded from this Amendment and the
balance of the Amendment shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
12. ENTIRE
AGREEMENT.
This
Amendment, together with the Agreement (including the Appendices and Exhibits
thereto) and the other agreements executed pursuant hereto and thereto,
constitutes the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
3
IN
WITNESS WHEREOF, the
parties have executed this First Amendment to Stock Purchase Agreement as of
the
date first written above.
SELLER:
By:
____________________________________
Name:
__________________________________
Title:
____________________________________
BUYER:
_________________________________________
(Name
of
Buyer)
By:
______________________________________
Name:
____________________________________
Title:
_____________________________________
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES OF BUYERS TO FOLLOW]