Exhibit 10.11
FIRST AMENDMENT TO INDENTURE, SECURITIES,
WARRANT AGREEMENT AND WARRANT CERTIFICATES
THIS FIRST AMENDMENT TO INDENTURE, SECURITIES, WARRANT
AGREEMENT AND WARRANT CERTIFICATES (this "First Amendment") is
made as of and shall be effective for all purposes as of the 18th
day of March, 2003, 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 (the "Indenture") between the Company and the
Trustee, the Company issued and sold $5,000,000 of its 8% notes
due March 31, 2003 (collectively 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, the Company and the Consenting Holders (as defined
below) desire to amend the Indenture and Securities as
hereinafter provided to reflect the extension of the maturity
date on the Securities from March 31, 2003 until March 31, 2006;
and
WHEREAS, the Company and the Consenting Holders 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 $.10 to $.075; and
WHEREAS, the terms contained in this First Amendment are
consented to by the holders of at least two-thirds principal
amount of all Securities (collectively, the "Consenting
Holders");
NOW, THEREFORE, in consideration of the foregoing recitals,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this
First Agreement hereby agree as follows:
1. Incorporation of Recitals. The foregoing Recitals are
incorporated in this First Amendment and made a part hereof by
this reference to the same extent as if set forth herein in full.
All section references shall, unless otherwise expressly
indicated, mean the corresponding section of the Indenture.
2. Definitions. All capitalized terms used but not
defined herein shall have the meanings given such terms in the
Indenture.
3. Amendment of the Indenture and Securities. The
Indenture and each of the Securities is hereby amended to replace
"March 31, 2003" with "March 31, 2006" wherever such term may
appear, thereby extending the maturity date of the Securities
until March 31, 2006. The Indenture is hereby amended to delete,
in its entirety, Section 9.03 thereof.
4. Amendment of Warrant Agreement. The Warrant Agreement
and each Warrant Certificate is hereby amended to replace "$.10"
with ".075" wherever such term may appear.
5. Ratification of Indenture, Securities, Warrant
Agreement and Warrant Certificates. Except as set forth in this
First Amendment, all the terms and conditions contained in the
Indenture, Securities, Warrant Agreement or Warrant Certificate
are hereby ratified and shall remain in full force and effect.
In the event that any of the terms, conditions and provisions of
this First Amendment shall conflict with any of the terms,
conditions and provisions of the Indenture, Securities, Warrant
Agreement or Warrant Certificates then, and in such event, the
terms, conditions and provisions of this First 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 First Amendment.
6. Effective Date of First Amendment. The effective date
of this First Amendment shall be March 18, 2003.
7. Counterparts. This First 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 First 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
First 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 First
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.
_________________________ By: _______________________
Name: _______________________
Title: _______________________
ATTEST: THE TRUSTEE AND WARRANT AGENT:
AMERICAN STOCK TRANSFER &
TRUST COMPANY
_________________________ By: _______________________
Name: _______________________
Title: _______________________
CONSENT AND WAIVER OF CONSENTING HOLDERS
Each of the undersigned, 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 and the Indenture, as set forth
in this First 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 and Waiver of
Consenting Holders in accordance with its terms.
CONSENTING HOLDERS:
WITNESS: THOMAS L. KEMPNER:
______________________________ ______________________________
Thomas L. Kempner, record
holder of $32,395
principal amount of Securities
WITNESS: SIDNEY R. KNAFEL:
______________________________ ______________________________
Sidney R. Knafel, record
holder of $1,244,329
principal amount of Securities
WITNESS: Trust U/W of Carl M. Loeb FBO
Thomas L. Kempner, record
holder of $944,933 principal
amount of Securities
______________________________ By:___________________________
Thomas L. Kempner
Trustee
______________________________ By:___________________________
William Perlmuth
Trustee
WITNESS: Trust U/W of Carl M. Loeb FBO
Alan H. Kempner, record holder
of $942,773 principal amount
of Securities
______________________________ By:___________________________
Thomas L. Kempner
Trustee
______________________________ By:___________________________
William Perlmuth
Trustee
WITNESS: Trust U/A dated 9/13/1978 FBO
Andrew G. Knafel, holder of
$340,341 principal amount of
Securities
______________________________ By:___________________________
Name:
Trustee
WITNESS: Trust U/A dated 9/13/1978 FBO
Douglas R. Knafel, holder of
$340,341.50 principal amount
of Securities
______________________________ By:___________________________
Name:
Trustee
WITNESS: Bear Stearns Securities Corp.
confirms that it holds
$944,933 principal amount of
Securities on behalf of Trust
U/W of Carl M. Loeb FBO Thomas
L. Kempner and that said trust
has the authority to provide
the above consent and waiver
with respect to said
Securities and Bear Stearns
Securities Corp. hereby
consents to the actions
contemplated hereby with
respect to said Securities.
_______________________________ By:____________________________
Name:
Title:
WITNESS: Bear Stearns Securities Corp.
represents that it holds
$942,773 principal amount of
Securities on behalf of Trust
U/W of Carl M. Loeb FBO Alan
H. Kempner and that said trust
has the authority to provide
the above consent and waiver
with respect to said
Securities, and Bear Stearns
Securities Corp. hereby
consents to the actions
contemplated hereby with
respect to said Securities.
_______________________________ By:____________________________
Name:
Title: