EX-10.1
AMENDMENT NO. 1 TO CONVERTIBLE DEBENTURE AND SECURITIES
PURCHASE AGREEMENT
This Amendment No. 1 ("AMENDMENT") to the Convertible Debenture
in the principal amount of $120,000 dated July 28, 2006 (the "CONVERTIBLE
DEBENTURE") and the Securities Purchase Agreement dated July 28, 2006 (the
"SPA"), is made as of December 19, 2006, by and among Cornell Capital Partners,
LP ("CORNELL CAPITAL") and Nanoscience Technologies, Inc. (the "COMPANY").
WHEREAS, the Company and Cornell entered into the SPA on July
28, 2006, pursuant to which the Company issued to Cornell that certain 8%
Convertible Debenture, denominated No. NANS-3-1 due July 28, 2008;
WHEREAS, Cornell and the Company have agreed to the provision by
Cornell to the Company of additional $60,000 in financing pursuant to the same
terms as provided in the Convertible Debenture; and
WHEREAS, in response and in accordance with that understanding,
the parties to this Agreement desire to amend the Convertible Debenture and the
SPA.
NOW THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. AMENDMENT TO THE PREFACE OF THE CONVERTIBLE
DEBENTURE. The first two paragraphs of the Convertible Debenture are hereby
amended and restated in their entirety as follows:
"This Secured Convertible Debenture (the "DEBENTURE") is issued by
NANOSCIENCE TECHNOLOGIES, INC., a Delaware corporation (the "OBLIGOR"), to
CORNELL CAPITAL PARTNERS, LP (the "HOLDER"), pursuant to that certain Securities
Purchase Agreement (the "SECURITIES PURCHASE AGREEMENT") dated July 28, 2006.
FOR VALUE RECEIVED, the Obligor hereby promises to pay to the Holder or
its successors and assigns the principal sum of One Hundred Eighty Thousand
Dollars ($180,000) together with accrued but unpaid interest on or before July
28, 2008 (the "MATURITY DATE") in accordance with the following terms:"
Section 2. AMENDMENT TO THE PREFACE OF THE SPA. The second
paragraph under the recitatitions on the first page of the SPA is hereby amended
and restated in its entirety as follows:
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the Buyer and
the Buyer shall purchase up to One Hundred Eighty Thousand Dollars ($180,000)
(the "PURCHASE PRICE") of secured convertible debentures (the "CONVERTIBLE
DEBENTURES"), which shall be convertible into shares of the Company's common
stock, par value $0.001 (the "COMMON STOCK") (as converted, the "CONVERSION
SHARES"), of which One Hundred Twenty Thousand Dollars ($120,000) was
provided at the Closing (as defined herein) on July 28, 2006 and Sixty Thousand
Dollars ($60,000) shall be provided on December 19, 2006 (the "SECOND CLOSING,"
and together with the Closing, the "CLOSINGS").
Section 3. AMENDMENT TO SECTION 1(b) OF THE SPA. Section
1(b)(ii) of the SPA is hereby amended and restated in its entirety as follows:
...
(b) CLOSING DATE. The closing of the purchase and sale of
the Convertible Debentures (the "CLOSING") shall take place at 10:00 a.m.
Eastern Standard Time on the fifth day following the date hereof, subject to
notification of satisfaction of the conditions to such Closing set forth in
Sections 6 and 7 below ( the "CLOSING DATE"). The Closing shall occur on the
respective Closing Date at the offices of Yorkville Advisors, LLC, 0000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxx Xxxxxx 00000 (or such other place as is
mutually agreed to by the Company and the Buyer). The Second Closing shall take
place at 4:00 p.m. Eastern Standard Time on December 19, 2006.
Section 4. AMENDMENT TO SECTION 4(g) OF THE SPA. Section 4(g) of
the SPA is hereby amended and restated in its entirety as follows:
...
(g) ...
(iv) Simultaneously with the Second Closing, the Company
shall pay a fee to the Buyer of 250,000 shares of the Company's Common Stock.
Such fee shall represent a commitment, structuring, and legal fee. The Company
shall also, simultaneously with the Second Closing, issue to the Buyer a warrant
to purchase 500,000 shares of the Company's Common Stock for a period of five
(5) years at an exercise price of $0.06 per share. The shares of Common Stock
issuable under the Warrant shall be deemed Warrant Shares, as that term is used
in Section 4(g)(iii) hereof, and shall also have "piggy-back" and demand
registration rights as set forth in the Investor Registration Rights Agreement.
Section 5. EFFECT OF AMENDMENT. Except as amended hereby, the
Convertible Debenture and the SPA shall continue in full force and effect and
are hereby incorporated herein by this reference.
Section 6. GOVERNING LAW. This Amendment shall be governed by
and construed under the laws of the State of New Jersey.
Section 7. TITLES AND SUBTITLES. The titles of the sections and
subsections of this Amendment are for convenience of reference only and are not
to be considered in construing this Amendment.
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Section 8. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed as of the date first set forth above.
CORNELL CAPITAL PARTNERS, LP NANOSCIENCE TECHNOLOGIES, INC.
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxx Xxxxxxxxx
----------------------
By:/s/ Xxxx Xxxxxx Name: Xxx Xxxxxxxxx
---------------------------------------- Title: Director
Name: Xxxx Xxxxxx
Its: Portfolio Manager
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