Contract
EXHIBIT 10.128
AMENDMENT NO. 1 TO SELLING
AGREEMENT
THIS
AMENDMENT NO. 1 TO SELLING AGREEMENT (this “Amendment”) is dated as of
June 25, 2008, and effective as of May 30, 2008, by and among Performance Health
Technologies, Inc., a Delaware corporation located at 000 Xxxxx Xxxx Xxxxx,
Xxxxxxx, XX 00000 (the “Seller”), and Xxxxxx Xxxxx
Securities, Inc., a Florida corporation located at 000 X. Xxxxxxx Xxxxxxx, 0xx
Xxxxx, Xxxx Xxxxx, XX 00000 (the “Selling Agent”).
WHEREAS,
the parties entered into that certain Selling Agreement, dated January 24, 2008,
by and among the Seller and Selling Agent, a copy of which is attached hereto as
Exhibit A (the
“Agreement”).
WHEREAS,
the Seller and the Selling Agent wish to amend certain provisions of the
Agreement as set forth herein;
NOW,
THEREFORE, for and in consideration of the mutual promises and covenants other
agreements contained in this Amendment, the Seller and the Selling Agent hereby
agree to amend the Agreement as follows:
1. Defined
Terms; Conflicting Documents. All capitalized terms used but
not defined herein shall have the meaning set forth in the
Agreement. In the event of any conflict between the Agreement and
this Amendment, this Amendment shall prevail and govern.
2.
Amendment
to the Introductory Paragraph. The first sentence of the
Introductory Paragraph of the Agreement is hereby deleted in its entirety and
replaced with the following sentence:
“PERFORMANCE
HEALTH TECHNOLOGIES, INC., a Delaware corporation (the “Seller”), proposes to
offer and sell (the “Offering”), to selected investors, upon the terms set forth
herein and in the Subscription Agreement and the Confidential Private Placement
Memorandum for the Offering (which collectively, together with the attachments
and exhibits thereto, is referred to as the “Offering Document”), up to
$3,000,000 worth of units (the “Units”), as such Units are described in the
Offering Document (the Units being offered, including the securities underlying
such Units, are sometimes referred to herein as the “Offered
Securities”).”
3.
Amendment
to Section 1.1. Section 1.1 of the Agreement is hereby amended
to extend the term of the Agreement to September 30, 2008 by deleting the words
“May 31, 2008” therein and replacing them with the words “September 30,
2008.”
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4.
Amendment
to Section 1.8. The first sentence of Section 1.8 of the
Agreement is hereby deleted in its entirety and replaced with the following
sentence:
“1.8 Upon
the Closing of the sale of the Offered Securities, the Seller will issue to the
Selling Agent warrants to purchase that number of shares of common stock of the
Seller that is equal to ten percent (10%) of the number of shares of common
stock of the Seller issuable upon conversion of all of the Notes (as such term
is defined in Exhibit
A hereto) sold by Selling Agent, assuming all of the Notes are converted
into shares of common stock of the Seller as of the Closing date at a purchase
price equal to the Conversion Price (as that term is defined in the final
agreements relating to the Offered Securities) calculated as of such Closing
date (the “Warrant Price”).”
5.
Amendment
to Exhibit A. Exhibit A of the
Agreement is hereby amended such that the term “Offering Size” is increased from
$2,500,000 to $3,000,000 and the number of Units set forth next to the section
entitled “Securities Offered” is increased from 2,500 to 3,000. Exhibit A may be
changed from time to time by mutual agreement of Seller and Selling Agent until
such time as the final Offering Document is complete, at which time the Offering
Document shall govern the terms of the Offering.
6.
Ratification. Except as specifically
herein amended and modified, all terms and conditions of the Agreement remain
unchanged and in full force and effect.
7.
Incorporation
of Changes. The parties hereto
covenant and agree that the amendments contemplated in this Amendment shall be
deemed to be incorporated by reference into and made a part of the
Agreement.
[Signature Page
Follows]
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SIGNATURE PAGE TO AMENDMENT
NO. 1 TO SELLING AGREEMENT
Please
acknowledge your acceptance of the foregoing Amendment by signing and returning
a copy to the undersigned whereupon it shall become a binding agreement between
us.
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PERFORMANCE
HEALTH TECHNOLOGIES, INC.
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By:
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Name:
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Title:
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XXXXXX
XXXXX SECURITIES, INC.
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By:
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Name:
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Title:
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Exhibit
A
