EXHIBIT 4.5
SECOND AMENDMENT TO INDENTURE, SECURITIES,
WARRANT AGREEMENT AND WARRANT CERTIFICATES
THIS SECOND AMENDMENT TO INDENTURE, SECURITIES, WARRANT
AGREEMENT AND WARRANT CERTIFICATES (this "Second Amendment") is
made as of and shall be effective for all purposes as of the 28th
day of March, 2006, by and between Igene Biotechnology, Inc., a
Maryland corporation (the "Company"), and American Stock Transfer
& Trust Company, a New York corporation, its successors and
assigns, as Trustee (the "Trustee") and as Warrant Agent (the
"Warrant Agent").
RECITALS
________
WHEREAS, pursuant to the terms of an Indenture dated as of
March 31, 1998, as amended (the "Indenture") between the Company
and the Trustee, the Company issued and sold $5,000,000 of its 8%
notes due March 31, 2003 (the "Securities"); and
WHEREAS, concurrently with the issue of the Securities, the
Company issued, pursuant to a Warrant Agreement dated as of March
31, 1998 (the "Warrant Agreement"), 50,000,000 warrants to
purchase shares of the Company's Common Stock for $.10 per share,
as adjusted in accordance with the terms of the Warrant
Agreement; and
WHEREAS, on March 18, 2003, the Company and the Consenting
Holders (as defined below) amended the Indenture and Securities
to reflect the extension of the maturity date on the Securities
to March 31, 2006; and
WHEREAS, the Company and the Consenting Holders desire to
further amend the Indenture and Securities as hereinafter
provided to reflect the extension of the maturity date on the
Securities from March 31, 2006 until March 31, 2009; and
WHEREAS, in return for amending the Indenture and extending
the maturity date on the Securities, the Consenting Holders and
the Company desire to amend the terms of the Warrant Agreement
and each of the Warrant Certificates (within the meaning of the
Warrant Agreement) as hereinafter provided to reduce the Warrant
Price (as defined in the Warrant Agreement) from $.075 to $.056;
and
WHEREAS, the terms contained in this Second Amendment are
consented to by the holders of at least two-thirds principal
amount of all Securities (collectively, the "Consenting
Holders");
NOW, THEREFORE, in consideration of the foregoing recitals,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this
Second Agreement hereby agree as follows:
1. Incorporation of Recitals. The foregoing recitals are
incorporated in this Second Amendment and made a part hereof by
this reference to the same extent as if set forth herein in full.
All section references shall, unless otherwise expressly
indicated, mean the corresponding section of the Indenture.
2. Definitions. All capitalized terms used but not
defined herein shall have the meanings given such terms in the
Indenture.
3. Amendment of the Indenture and Securities. The
Indenture and each of the Securities are hereby amended to
replace "March 31, 2006" with "March 31, 2009" wherever such term
may appear, thereby extending the maturity date of the Securities
until March 31, 2009.
4. Amendment of Warrant Agreement. The Warrant Agreement
and each Warrant Certificate is hereby amended to replace "$.075"
with "$.056" wherever such term may appear.
5. Ratification of Indenture, Securities, Warrant
Agreement and Warrant Certificates. Except as set forth in this
Second Amendment, all the terms and conditions contained in the
Indenture, Securities, Warrant Agreement or Warrant Certificates,
each, as amended, are hereby ratified and shall remain in full
force and effect. In the event that any of the terms, conditions
and provisions of this Second Amendment shall conflict with any
of the terms, conditions and provisions of the Indenture,
Securities, Warrant Agreement or Warrant Certificates, each, as
amended, then, and in such event, the terms, conditions and
provisions of this Second Amendment shall prevail and be
controlling. Hereafter, all references to the Indenture,
Securities, Warrant Agreement or any Warrant Certificate shall
mean the Indenture, Securities, Warrant Agreement or such Warrant
Certificate, respectively, as amended by this Second Amendment.
6. Effective Date of Second Amendment. The effective date
of this Second Amendment shall be March 28, 2006.
7. Counterparts. This Second Amendment may be executed in
any number of counterparts, each of which shall be deemed an
original, and all of which, when taken together, shall be deemed
to be a single instrument.
8. Applicable Law. This Second Amendment shall be
governed by the laws of the State of New York, without regard to
its conflicts of law rules.
9. Disclaimer. In accordance with Section 7.04 of the
Indenture, American Stock Transfer and Trust Company makes no
representation or warranty as to the validity or adequacy of this
Second Amendment and shall not be responsible for any of the
recitals set forth herein.
[Signature Page Follows]
IN WITNESS WHEREOF, and intending to be legally bound, the
Company, Trustee and Warrant Agent have caused this Second
Amendment to be executed on their behalf by their duly authorized
representatives as of the date set forth above.
ATTEST: THE COMPANY:
IGENE BIOTECHNOLOGY, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
_________________________ ________________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇
President
ATTEST: THE TRUSTEE AND WARRANT AGENT:
AMERICAN STOCK TRANSFER &
TRUST COMPANY
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________ ________________________________
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary Vice President
CONSENT OF CONSENTING HOLDERS
Each of the undersigned, collectively constituting holders
of at least two-thirds in principal amount of all Securities, do
hereby irrevocably consent, on behalf of all holders of
Securities pursuant to and in accordance with the terms of the
Indenture, to the amendment of the Securities, the Indenture, the
Warrant Agreement and the Warrant Certificates, as set forth in
this Second Amendment. Each of the persons signing below in
their capacity as trustee on behalf of any trust represent that
they currently serve as trustee under the trust(s) listed
immediately above their names, and have the trust power and
authority to sign below and to bind the trust(s) listed
immediately above their names to this Consent of Consenting
Holders in accordance with its terms.
CONSENTING HOLDERS:
WITNESS:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________ __________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, record and
beneficial holder of $32,395
principal amount of Securities
WITNESS:
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________ __________________________________
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, record
holder of $1,214,544 principal
amount of Securities
WITNESS: Trust U/W of ▇▇▇▇ ▇. ▇▇▇▇ FBO
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, beneficial and
record holder of $944,933
principal amount of Securities
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________ __________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trustee
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________ __________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Trustee
WITNESS: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III,
beneficial holder of $942,773
principal amount of Securities
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
_________________________ __________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
WITNESS: Trust U/A dated 9/13/1978 FBO
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, holder of
$340,341.50 principal amount
of Securities
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________ __________________________________
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
WITNESS: Trust U/A dated 9/13/1978 FBO
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, holder of
$340,341.50 principal amount
of Securities
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________ __________________________________
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee