EXHIBIT 4.12
ADDENDUM TO FIRST AMENDMENT TO
8% SECURED CONVERTIBLE DEBENTURE DUE FEBRUARY 28, 2002
THIS ADDENDUM TO FIRST AMENDMENT TO 8% SECURED CONVERTIBLE DEBENTURE
DUE FEBRUARY 28, 2002 (this "Addendum") is made and effective as of September
24, 2001, by and between BIOGAN INTERNATIONAL, INC., a Delaware corporation (the
"Company"), and THOMSON KERNAGHAN & CO., LIMITED, a Canadian limited liability
company (the "Holder").
R E C I T A L S
A. Effective as of September 24, 2001, the Company and the Holder
entered into the First Amendment to 8% Secured Convertible Debenture due
February 28, 2002 ("First Amendment").
B. The Company and the Holder desire to add an additional term to the
First Amendment on the terms and conditions set forth herein.
A G R E E M E N T
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants set forth herein and in the First Amendment, the parties hereto do
hereby agree as follows:
1. Amendment to Section 4E of the Debenture.
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The first sentence of Section 4E of the Debenture is hereby
amended and restated to read in its entirety as follows:
"E. Notwithstanding any other provision hereof, of the
Warrants, of any of the other Transaction Agreements (as those terms
are defined in the Securities Purchase Agreement) or of the Company's
Amended Certificate of Designations of Series A Convertible Preferred
Stock, in no event (except (i) with respect to an automatic conversion,
if any, of a Debenture as provided in the Debentures, (ii) as
specifically provided in this Debenture as an exception to this
provision, or (iii) while there is outstanding a tender offer for any
or all of the shares of the Company's Common Stock) shall the Holder be
entitled to convert all or any portion of this Debenture or to convert
all or any shares of Series A Convertible Preferred Stock (and the
Company shall not have the right to pay interest on this Debenture in
shares of Common Stock) to the extent that, after such conversion, the
sum of (1) the number of shares of Common Stock beneficially owned by
the Holder and its affiliates (other than shares of Common Stock that
may be deemed beneficially owned through the ownership of the
unconverted portion of the Debentures or unconverted shares of Series A
Convertible Preferred Stock), and (2) the number of shares of Common
Stock issuable upon conversion of the Debentures or Series A
Convertible Preferred Stock or upon exercise of the Warrants with
respect to which the determination of this proviso is being made, would
result in beneficial ownership by the Holder and its affiliates of more
than 9.99% of the outstanding shares of Common Stock (after taking into
account the shares to be issued to the Holder upon such conversion or
exercise).
2. Miscellaneous.
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(a) All other terms and provisions of the Debenture and the
First Amendment not expressly modified by this Addendum shall remain in
full force and effect; provided, however, that to the extent any
provisions of the Debenture, the First Amendment or any of the other
Transaction Agreements (as defined in the Securities Purchase
Agreement) are in conflict with the provisions of this Addendum, the
provisions of this Addendum shall control.
(b) This Addendum, along with the Debenture, the other
Transaction Agreements and the First Amendment to Registration Rights
Agreement, shall constitute and contain the complete understanding and
agreement of the parties hereto, and cancel and supersede any and all
prior negotiations, correspondence, understandings and agreements,
whether written or oral, between the parties with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Addendum to be
effective as of September 24, 2001.
Dated: October 3, 2001 BIOGAN INTERNATIONAL, INC.
By: /S/ X. Xxxxxxxxxx
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Its: President
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Dated: October 3, 2001 THOMSON KERNAGHAN & CO., LIMITED
By: /S/ Xxxxx Xxxxxx
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Its: Sr. VP & Director
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