AGREEMENT
THIS AGREEMENT is entered into this 13th day of November, 200 by and
between FIRST SCIENTIFIC, INC. (the "Company"), a Delaware corporation with an
address at 0000 Xxxx 0000 Xxxxx, Xxxxx 000, Xxxxx, Xxxx 00000, and ASPEN CAPITAL
RESOURCES, LLC ("Aspen), a Utah limited liability company with an address at
0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000.
The Company and Aspen have entered into a Securities Purchase Agreement
(the "Agreement") dated as of May 16, 2000.
The Company and Aspen desire to amend and modify various provisions of
the Agreement and the Related Documents (as defined in the Agreement).
NOW, THEREFORE, in consideration of these premises and the mutual
covenants and agreements contained herein, the parties hereby agree as follows:
1. The Company and Aspen hereby acknowledge and agree that
notwithstanding any other provision of the Agreement or the Related Documents,
the date for compliance by the Company of any required performance on the part
of the Company is hereby extended to the date of this Agreement.
2. The Company and Aspen hereby acknowledge and agree that any failure
of the Company to perform its obligations under Section 9.1 of the Agreement
with respect to any shares of its Common Stock, excepting the registration on
Form S-3 of the offer and resale by Aspen of 2,000,000 shares issuable upon
conversion of Series 2000-A Preferred Stock and 2,000,000 shares issuable upon
exercise of Warrants of the Company, (the "Excess Shares") shall not constitute
an event of default under the Agreement if the Company has performed all of its
obligations under Section 9.1 of the Agreement on or before March 15, 2001.
Additionally, if prior to March 15, 2001, the Company files a registration
statement to register additional shares, the Company agrees to include the
Excess Shares in such registration statement.
3. The Company hereby agrees to amend and restate the Certificate of
Designation of the Series 2000-A Convertible Preferred Stock, in the form
attached hereto and incorporated herein by this reference, and to file such
amended and restated Certificate of Designation in accordance with applicable
law upon execution of this Agreement.
4. The Company hereby agrees to amend the Warrant Certificates issued
to Aspen in the form attached hereto and incorporated herein by this reference
upon execution of this Agreement.
5. The Company hereby agrees to pay to Aspen the amount of $1,500,00
upon execution of this Agreement, as partial reimbursement for Aspen's costs
associated with this transaction.
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6. The obligations of Aspen pursuant to this Agreement are subject to
Xxxxx X. Xxxxx remaining as the President of Chief Executive Officer of the
Company through at least January 31, 2001.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
ASPEN CAPITAL RESOURCES, LLC FIRST SCIENTIFIC, INC.
By: /s/ Xxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------- -------------------------------------
Xxx X. Xxxxxxx, Manager Xxxxxxx X. Xxxxx, President and
Chief Executive Officer
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx,
Chief Financial Officer
STATE OF UTAH )
: ss
COUNTY OF XXXXX )
On November 14, 2000, personally appeared before me Xxxxxxx X. Xxxxx,
personally known to me (or proved to me on the basis of satisfaction evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal. /s/ illegible
NOTARY PUBLIC
STATE OF UTAH )
: ss
COUNTY OF XXXXX )
On November 14, 2000, personally appeared before the Xxxx X. Xxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal. /s/ illegible
NOTARY PUBLIC
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FIRST SCIENTIFIC, INC.
(a Delaware corporation)
Amendment to
Warrant Certificates
for the Purchase of Common Stock
ASPEN CAPITAL RESOURCES, LLC or its assigns (the "Holder"), a Utah
limited liability company with an address at 0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxx
Xxxx Xxxx, Xxxx 00000, is the owner of Series 2000-A Warrants (the "Warrants")
of FIRST SCIENTIFIC, INC. the ("Company"), a Delaware corporation with an
address at 0000 Xxxx 0000 Xxxxx, Xxxxx 000, Xxxxx, Xxxx 00000 as provided in the
Warrant Certificates of the Company dated May 16, 2000; June 15, 2000; June 29,
2000; August 14, 2000; and September 12, 2000 (collectively the "Warrant
Certificates").
The Company and the Holder hereby mutually agree to and do amend and
modify each of the Warrant Certificates as provided herein, for valuable
consideration the receipt and sufficiency of which is hereby acknowledged.
The Company and the Holder hereby acknowledge and agree that the
Warrant Certificate dated May 16, 2000 is for 500,000 Warrants; the Warrant
Certificate dated June 15, 2000 is for 500,000 Warrants; the Warrant Certificate
dated June 29, 2000 is for the 500,000 Warrants; the Warrant Certificate dated
August 14, 2000 is for 250,000 Warrants; and the Warrant Certificate dated
September 12, 2000 is for the 250,000 Warrants.
Each of the Warrant Certificates is hereby amended and modified to
provide the Initial Exercise Price is $2.25 per share.
Section 1 of each of the Warrant Certificates is hereby amended,
modified and restated as follows:
1. Duration. Warrants may be exercised at any time and from time to
time on or after September 1, 2001 (the "Exercise Commencement"), but not after
May 16, 2004 (the "Exercise Deadline"). Notwithstanding the foregoing, all of
the Warrants shall be immediately exercisable (i) if there is a change in
control of the Company, or (ii) if the Company sells all or substantially all of
its assets. The Holder may delay the Exercise Commencement date by up to 360
days by delivering a written notification of the new Exercise Commencement date
to the company at least 90 days prior to the Exercise Commencement date.
Except as provided above, the Warrant Certificates continue in full
force and effect according to their terms.
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IN WITNESS WHEREOF, the Company has caused this Amendment to Warrant
Certificates to be executed by its duly authorized officers or agents as of
November 13, 2000.
ASPEN CAPITAL RESOURCES, LLC FIRST SCIENTIFIC, INC.
By: /s/ Xxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------------- -------------------------------------
Xxx X. Xxxxxxx, Manager Xxxxxxx X. Xxxxx, President and
Chief Executive Officer
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx,
Chief Financial Officer
STATE OF UTAH )
: ss
COUNTY OF XXXXX )
On November 14, 2000, personally appeared before me Xxxxxxx X. Xxxxx,
personally known to me (or proved to me on the basis of satisfaction evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal. /s/ illegible
NOTARY PUBLIC
STATE OF UTAH )
: ss
COUNTY OF XXXXX )
On November 14, 2000, personally appeared before the Xxxx X. Xxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal. /s/ illegible
NOTARY PUBLIC
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