WARRANT AGREEMENT
WARRANT AGREEMENT dated as of _______ __, 1998 between IGENE
Biotechnology, Inc., a Maryland corporation, and American Stock Transfer & Trust
Company, a New York corporation (hereinafter called the "Warrant Agent").
IGENE Biotechnology, Inc. (hereinafter called the "Company") proposes
to issue stock purchase warrants (hereinafter called the "Warrants"). Each
Warrant entitles the holder thereof to purchase, within 10 years from the date
hereof, one share of Common Stock, par value $ .01 per share (the "Common
Stock"), at a purchase price of $.10 per whole share. The Warrant Agent, at the
request of the Company, has agreed to act as the agent of the Company in
connection with the issuance, registration, transfer, exchange, and exercise of
Warrants.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter set forth in this Agreement, and the Warrant Agent
hereby accepts such appointment. The Company may from time to time appoint such
Co-Warrant Agents as it may deem necessary or desirable. The Company shall
promptly notify the Warrant Agent from time to time in writing of the number of
Warrants to be issued and furnish written instructions in connection therewith.
SECTION 2. FORM OF WARRANT CERTIFICATES. The Warrant Certificates (and
the forms of election to purchase shares and of assignment to be printed on the
reverse thereof) shall be substantially of the tenor and purport recited in
Exhibit A hereto and may have such letters, numbers or other marks of
identification or designation and such legends, summaries or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Warrant Agreement, or as
may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Warrants may from time to time be listed, or to conform to usage. The
Warrant Certificates shall be dated as of the date of issuance thereof by the
Warrant Agent, either upon initial issuance or upon transfer or exchange, and
initially shall entitle the holders thereof to purchase one share of Common
Stock, but the number of such shares and the purchase price per share of Common
Stock shall be subject to adjustments as provided herein.
SECTION 3. COUNTERSIGNATURE AND REGISTRATION. The Warrant Certificates
shall be executed on behalf of the Company by the Chairman of the Board, Chief
Executive Officer, President or any Vice President by facsimile signature, and
shall be attested by any Vice President, Treasurer or the Secretary of the
Company by facsimile signature. The Warrant Certificates shall be manually
countersigned by the Warrant Agent and shall not be valid for any purpose unless
so countersigned. In case any officer of the Company who shall have signed any
of the Warrant Certificates shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issuance and delivery by the Company,
such Warrant Certificates, nevertheless, may be countersigned by the Warrant
Agent, issued and delivered with the same force and effect as though the person
who signed such Warrant Certificates had not ceased to be such officer of the
Company; and any Warrant Certificates may be signed on behalf of the Company by
any person who, at the actual date of the execution of such Warrant
Certificates, shall be a proper officer of the Company to sign such Warrant
Certificates, although at the date of the execution of this Warrant Agreement
any such person was not such an officer.
The Warrant Agent will keep or cause to be kept, at one of its offices
in the City of New York, State of New York, books for registration and transfer
of the Warrant Certificates issued hereunder. Such books shall show the names
and addresses of the respective holders of the Warrant Certificates, the number
of Warrants evidenced on its face by each of the Warrant Certificates, and the
date of each of the Warrant Certificates.
The Warrant Agent shall countersign a Warrant Certificate only (a)
upon initial issuance of the Warrants in accordance with the written order
signed by the Chairman of the Board, the Chief Executive Officer, the President
or any Vice President or (b) upon exchange, transfer or substitution for one or
more previously countersigned Warrant Certificates as hereinafter provided.
SECTION 4. TRANSFER AND EXCHANGE. Subject to Section 6 hereof, the
Warrant Agent shall, from time to time, register the transfer of any outstanding
Warrant Certificate upon the books to be maintained by the Warrant Agent for
that purpose, upon surrender thereof for transfer properly endorsed or
accompanied by appropriate instruments of transfer and written instructions for
transfer. Upon any such registration of transfer, a new Warrant Certificate
shall be issued to the transferee and the surrendered Warrant Certificate shall
be canceled by the Warrant Agent. Any Warrant Certificate may be exchanged at
the option of the holder thereof, upon surrender at the office of the Warrant
Agent specified in Section 22 hereof, for another Warrant Certificate, or other
Warrant Certificates of different denominations, representing in the aggregate
the right to purchase a like number of shares of Common Stock. No fractional
Warrant Certificates will be issued. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Warrant Certificates.
SECTION 5. COMMON STOCK AND WARRANT COMMON STOCK. As hereinafter used
in this Agreement, Common Stock shall mean stock of the Company of any class,
whether now or hereafter authorized, which has the right to participate in the
distribution of either earnings or assets of the Company without limit as to
amount or percentage, and Warrant Common Stock shall mean only Common Stock, and
stock of any other class into which such presently authorized Common Stock may
hereafter be changed, issuable upon exercise of Warrants. In case, by reason of
the operation of Section 7, the Warrants shall entitle the registered holders
thereof to purchase any other shares of stock or other securities or property of
the Company or of any other corporation, any reference in this Agreement to the
exercise of Warrants shall be deemed to refer to and include the purchase of
such other shares of stock or other securities or property upon such exercise.
SECTION 6. WARRANT PRICE AND EXPIRATION DATE OF WARRANTS. The
registered holder of any Warrant Certificate may exercise the Warrants evidenced
thereby in whole or in part at any time on or after the date hereof upon
surrender of the Warrant Certificate with the form of election to purchase on
the reverse side thereof duly executed, to the Warrant Agent at the principal
office of the Warrant Agent in the City of New York, State of New York, together
with payment of the purchase price for one share of Common Stock as to which the
Warrants are exercised, at or prior to 3:30 p.m. New York City Time on ______
__, 2008 (the "Expiration Date").
The purchase price for each share of Common Stock pursuant to the
exercise of a Warrant (the "Warrant Price") shall be $.10 during the period from
the date hereof until the Expiration Date, in each case as adjusted pursuant to
Section 7 hereof. The Warrant Price shall be payable as follows: (a) by payment
to the Company of the Warrant Price in cash, by check or by wire transfer of
funds; (b) by surrender to the Company for cancellation of securities of the
Company having a Current Market Price (as defined herein) on the date of
exercise equal to the Warrant Price for such shares; (c) by surrender to the
Company for cancellation of notes or debt securities of the Company having a
principal balance plus accrued interest on the date of exercise equal to the
Warrant Price for such shares; or (d) by a combination of the methods described
in clauses (a), (b) and (c) above. In lieu of exercising the Warrant, the holder
may elect to receive a payment equal to the difference between (i) the Current
Market Price of the number of shares of Common Stock for which the payment is
elected and (ii) the Warrant Price with respect to such shares, payable only in
shares of Common Stock valued at Current Market Price on the date of exercise.
SECTION 7. WARRANT ADJUSTMENTS. The Warrant Price and the number of
shares purchasable upon exercise of a Warrant shall be subject to adjustment as
follows:
(a) STOCK DIVIDENDS, SUBDIVISIONS, COMBINATIONS AND RECLASSIFICATIONS.
In case the Company shall at any time after the date of this Agreement (i)
declare a dividend on the Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, (iii) combine the outstanding Common
Stock into a smaller number of shares, or (iv) issue any shares of its capital
stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the Warrant Price in effect at the time
of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and/or the number and kind of
shares of capital stock issuable upon exercise of the Warrants on such date
shall be proportionately adjusted so that the holder of any Warrant exercised
after such time shall be entitled to receive the aggregate number and kind of
shares of capital stock which, if such Warrant had been exercised immediately
prior to such date and at a time when the Common Stock transfer books of the
Company were open, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification. Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) CONSOLIDATION, MERGER OR SALE OF ASSETS. If, prior to the exercise
of any Warrants, the Company shall at any time consolidate with or merge into
another corporation, the holder of any Warrants will thereafter receive, upon
the exercise thereof in accordance with the terms of this Agreement, the
securities or property to which the holder of the number of shares of Common
Stock then deliverable upon the exercise of such Warrants would have been
entitled upon such consolidation or merger, and the Company shall take such
steps in connection with such consolidation or merger as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to any securities or property thereafter
deliverable upon the exercise of the Warrants. The Company or the successor
corporation, as the case may be, shall execute and deliver to the Warrant Agent
a supplemental agreement so providing. A sale of all or substantially all the
assets of the Company for a consideration (apart from the assumption of
obligations) consisting primarily of securities shall be deemed a consolidation
or merger for the foregoing purposes. The provisions of this subsection (b)
shall similarly apply to successive mergers or consolidations or sales or other
transfers.
(c) CALCULATIONS TO THE NEAREST ONE-TENTH OF A CENT AND ONE-HUNDREDTH
OF A SHARE. No adjustment in the Warrant Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this Section 7(c) are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 7 shall be made to
the nearest one-tenth of a cent and to the nearest one-hundredth of a share as
the case may be. Notwithstanding the first sentence of this subsection (c), any
adjustment required by this Section 7 shall be made no later than the earlier of
six months from the date of the transaction which mandates such adjustment or
the expiration of the right to exercise any Warrant.
(d) NOTICE OF WARRANT ADJUSTMENT. Whenever the Warrant Price or the
number of shares purchasable upon exercise of a Warrant shall be adjusted as
provided in this Section 7, the Company shall forthwith file with the Warrant
Agent a certificate, signed by an officer of the Company, showing in detail the
facts requiring such adjustment and the Warrant Price and number of shares so
purchasable that will be effective after such adjustment. The Company shall also
cause a notice setting forth any adjustments to be sent by mailing first class,
postage prepaid, to each registered holder of a Warrant or Warrants at its
address appearing on the Warrant register. The Warrant Agent shall have no duty
with respect to any certificate filed with it except to keep the same on file
and available for inspection by registered holders of Warrants during reasonable
business hours. The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of a Warrant to determine whether any facts exist
which may require any adjustment of the Warrant Price, or with respect to the
nature of any adjustment of the Warrant Price when made, or with respect to the
method employed in making such adjustment.
(e) OTHER NOTICES. In case the Company after the date hereof shall
propose to take any action of the type described in subsection (b) of this
Section 7, the Company shall file with the Warrant Agent a certificate, signed
by an officer of the Company, specifying the date on which such action shall
take place and shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action (to the extent such
facts may be known on the date of such notice) on the Warrant Price and the
number, or kind, or class of shares or other securities or property which shall
be purchasable upon exercise of Warrants. Such notice shall be given at least 10
days prior to the taking of such proposed action. The Company shall also cause a
notice setting forth any adjustments to be sent by mailing first class, postage
prepaid, to each registered holder of a Warrant Certificate or Warrant
Certificates at its address appearing on the Warrant register. Failure to give
such notice or any defect therein shall not affect the legality or validity of
such action.
(f) NO CHANGE IN WARRANT TERMS ON ADJUSTMENT. Irrespective of any of
the adjustments in the Warrant Price or the number of shares of Warrant Common
Stock, Warrant Certificates theretofore or thereafter issued may continue to
express the same prices and number of shares as are stated in a similar Warrant
Certificate issuable initially, or at some subsequent time, pursuant to this
Agreement and such number of Shares specified therein shall be deemed to have
been so adjusted.
(g) TREASURY SHARES. Shares of Common Stock at any time owned by the
Company shall not be deemed to be outstanding for purposes of any computation
under this Section 7.
SECTION 8. CURRENT MARKET PRICE. For all purposes of this Agreement,
the Current Market Price per share of Common Stock on any date shall be deemed
to be the average closing prices for the ten consecutive business days
commencing before such date on the principal national securities exchange or
Nasdaq System on which the shares of Common Stock or securities are listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange or Nasdaq System, the average of the reported bid and asked
prices during such 10 trading day period in the over-the-counter market as
furnished by the National Quotation Bureau, Inc., or, if such firm is not then
engaged in the business of reporting such prices, as furnished by any similar
firm then engaged in such business selected by the Company, or, if there is no
such firm, as furnished by any member of the National Association of Securities
Dealers, Inc. selected by the Company or, if the shares of Common Stock or
securities are not publicly traded, the Current Market Price shall be determined
in good faith by the Board of Directors of the Company.
SECTION 9. EXERCISE OF WARRANTS. Subject to the provisions of this
Agreement, each registered holder of Warrants shall have the right, which may be
exercised as in such Warrant Certificates expressed, to purchase from the
Company (and the Company shall issue and sell to such registered holders of
Warrants) all or part of the number of fully paid and nonassessable shares of
Warrant Common Stock specified in such Warrant Certificates (subject to the
adjustments as herein provided), upon surrender to the Company at the office of
the Warrant Agent specified in Section 22 hereof, of such Warrant Certificates
with the exercise form on the reverse thereof duly filled in and signed, and
upon payment to the Warrant Agent to the account of the Company of the Warrant
Price for the number of shares of Warrant Common Stock in respect of which such
Warrants are then exercised. The date of exercise of any Warrant shall be deemed
to be the date of its receipt by the Warrant Agent duly filled in and signed and
accompanied by proper funds or other consideration as hereinafter provided.
Payment of such Warrant Price may be made in cash, or by certified or official
bank check, or as set forth in Section 6 hereof. No adjustment shall be made for
any cash dividends on shares of Warrant Common Stock issuable upon exercise of a
Warrant. Upon such surrender of Warrants, and payment of the Warrant Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the registered holder of such Warrants
and in such name or names as such registered holder may designate, a certificate
or certificates for the number of full shares of Warrant Common Stock so
purchased upon the exercise of such Warrants together with cash as provided in
Section 12 of this Agreement, in respect of any fraction of a share of such
stock issuable upon such surrender.
Each person in whose name any certificate for shares of Common Stock
is issued upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record of the Common Stock represented thereby on, and such
certificate shall be dated, the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Warrant Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Common Stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding business day on which the Common Stock transfer books of the
Company are open.
SECTION 10. UNEXERCISED WARRANTS. To the extent that any Warrant
Certificates remain outstanding at the Expiration Date, the unexercised Warrants
represented thereby shall be deemed null and void.
SECTION 11. REDEMPTION OF WARRANTS BY THE COMPANY.
(a) REDEMPTION. The Warrants may be redeemed, at the option of the
Company, as a whole at any time or in part from time to time commencing three
years from the date hereof, and prior to their expiration, in any proportion as
the Company in its sole discretion may determine, at the office of the Warrant
Agent, upon the notice referred to in Section 11(b), at the price of $.01 per
Warrant, provided that the closing price of a share of Common Stock commencing
three years from the date hereof has reached at least ten times the Warrant
Price.
(b) DATE FIXED FOR, AND NOTICE OF, REDEMPTION. In the event the
Company shall elect to redeem all or any part of the Warrants, the Company shall
fix a date for the redemption. Notice of redemption shall be mailed by first
class mail, postage prepaid, by the Company not less than 30 days from the date
fixed for redemption to the registered holders of the Warrants to be redeemed at
their last address as they shall appear on the registration books. Any notice
mailed in the manner herein provided shall be conclusively presumed to have been
duly given whether or not the registered holder received such notice.
(c) EXERCISE AFTER NOTICE OF REDEMPTION. The Warrants may be exercised
in accordance with Section 9 of this Agreement at any time after notice of
redemption shall have been given by the Company pursuant to Section 11(b) hereof
and prior to the date fixed for redemption.
SECTION 12. ELIMINATION OF FRACTIONS. The Company shall not be
required to issue fractional shares of stock upon any exercise of Warrants. As
to any final fraction of a share which the same registered holder of one or more
Warrants, the rights under which are exercised in the same transaction or series
of related transactions, would otherwise be entitled to purchase upon such
exercise, the Company shall pay a cash adjustment in respect of such final
fraction in an amount equal to the same fraction of the Current Market Price (as
determined in the manner prescribed in Section 8 hereof) on the business day
which next precedes the day of exercise.
SECTION 13. ISSUE TAXES. The Company will pay documentary stamp taxes,
if any, attributable to the initial issuance of shares of Warrant Common Stock
upon the exercise of any Warrant; PROVIDED, HOWEVER, that neither the Company
nor the Warrant Agent shall be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issue or delivery of any
certificates for shares of Warrant Common Stock in a name other than that of the
registered holder of Warrants, in respect of which such shares are initially
issued.
SECTION 14. RESERVATION OF SHARES. The Company shall at all times
reserve and keep available out of its authorized but unissued stock, for the
purpose of effecting the issuance of stock upon exercise of Warrants, such
number of shares of its duly authorized Warrant Common Stock as shall from time
to time be sufficient to effect the issuance of shares of Warrant Common Stock
upon exercise of all Warrants at the time outstanding.
SECTION 15. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT
AGENT. Any corporation into which the Warrant Agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In the case of Warrants which have been
countersigned by the Warrant Agent, but not delivered at the time any such
successor to the Warrant Agent succeeds to the agency created by this Agreement,
any such successor may adopt the countersignature of the original Warrant Agent
and deliver such Warrants so countersigned; and in case at that time any of the
Warrants shall not have been countersigned, any successor to the Warrant Agent
may countersign such Warrants either in the name of the predecessor Warrant
Agent or in the name of the successor Warrant Agent; and in all such cases such
Warrants shall have the full force and effect provided in the Warrants and in
this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrant Certificates so countersigned, and in case at that time any
of the Warrant Certificates shall not have been countersigned, the Warrant Agent
may countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall have the
full force and effect provided in the Warrant Certificates and in this
Agreement.
SECTION 16. DISPOSITION OF PROCEEDS ON EXERCISE OF WARRANTS, ETC. The
Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all moneys received by the Warrant
Agent for the purchase of shares of Common Stock through the exercise of such
Warrants.
The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours at its office
specified in Section 22 hereof.
SECTION 17. SUPPLEMENTS AND AMENDMENTS. The parties hereto may from
time to time supplement or amend this Agreement without the approval of any
holders of Warrants to cure any ambiguity or to correct or supplement any
provision contained in this Agreement which may be defective or inconsistent
with any other provision contained herein, or to make such other provisions with
respect to any change or any supplemental agreement as the parties may deem
necessary or desirable and which shall not materially adversely affect the
interests of the registered holders of the Warrants.
SECTION 18. MUTILATED OR MISSING WARRANT CERTIFICATES. If any Warrant
shall be mutilated, lost, stolen or destroyed the Warrant Agent shall deliver a
new Warrant Certificate of like tenor and denomination in exchange and
substitution therefor upon surrender and cancellation of the mutilated Warrant
Certificate or, in the case of a lost, stolen or destroyed Warrant Certificate,
upon receipt of evidence satisfactory to the Company and the Warrant Agent of
the loss, theft or destruction of such Warrant Certificate and, in either case,
upon receipt of such indemnity as the Company and the Warrant Agent may
reasonably require. Applicants for substitute Warrant Certificates shall also
comply with such other reasonable regulations and pay such other reasonable
charges as the Warrant Agent or the Company may prescribe. Any such new Warrant
Certificate shall constitute an original contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated or destroyed Warrant
Certificate shall be at any time enforceable by anyone.
SECTION 19. DUTIES OF THE WARRANT AGENT. The Warrant Agent undertakes
the duties and obligations imposed by this Warrant Agreement upon the following
terms and conditions, by all of which the Company and the holders of Warrants,
by their acceptance thereof, shall be bound:
(a) The Warrant Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the Warrant
Certificates (except its countersignature thereof and except such as describes
the Warrant Agent or action taken or to be taken by it) or be required to verify
the same, but all such statements and recitals are and shall be deemed to have
been made by the Company only. The Warrant Agent shall not be under any
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof or in respect of the validity or execution of any Warrant
Certificate (except its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate to be complied with by the Company; nor
shall it be responsible for the making of any adjustment in the Warrant Price or
the number of shares issuable upon the exercise of a Warrant required under the
provisions of Section 7 or responsible for the manner, method or amount of any
such change or the ascertaining of the existence of facts that would require any
such change; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
to be issued pursuant to this Agreement or any Warrant or as to whether any
shares will, when issued, be validly issued and fully paid and non-assessable.
(b) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees or for any loss to the Company resulting
from such neglect or misconduct, provided reasonable care had been exercised in
the selection and continued employment thereof.
(c) The Warrant Agent may consult at any time with legal counsel
satisfactory to it (who may be legal counsel for the Company) and the advice of
such counsel shall be full and complete authorization and protection to the
Warrant Agent as to any action taken or omitted by it in good faith and in
accordance with such advice.
(d) The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of a Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Warrant Agreement, to reimburse the Warrant Agent for all expenses
(including reasonable counsel fees), taxes and governmental charges and other
charges of any kind and nature incurred by the Warrant Agent in the execution of
this Warrant Agreement and to indemnify the Warrant Agent and save it harmless
against any and all liabilities, including judgments, costs and reasonable
counsel fees, for anything done or omitted by the Warrant Agent in the execution
of this Warrant Agreement except as a result of the Warrant Agent's negligence,
willful misconduct or bad faith.
(f) The Warrant Agent and any stockholder, director, officer or
employee of the Warrant Agent may buy, sell, or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Warrant Agent under this Warrant Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any other
legal entity.
(g) The Warrant Agent shall act hereunder solely as agent for the
Company and in a ministerial capacity, and its duties shall be determined solely
by the provisions hereof. The Warrant Agent shall not be liable for anything
which it may do or refrain from doing in connection with this Agreement except
for its own negligence, willful misconduct or bad faith.
SECTION 20. CHANGE OF WARRANT AGENT. The Warrant Agent may resign and
be discharged from its duties under this Agreement upon 30 days' notice in
writing mailed to the Company by registered or certified mail, and to the
holders of the Warrant Certificates by first-class mail. The Company may remove
the Warrant Agent or any successor Warrant Agent upon 30 days' notice in
writing, mailed to the Warrant Agent or successor Warrant Agent, as the case may
be, and to each transfer agent of the Common Stock by registered or certified
mail, and to the holders of the Warrant Certificates by first-class mail. If the
Warrant Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days after
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Warrant Agent or by the holder of a
Warrant Certificate (who shall, with such notice, submit such holder's Warrant
Certificate for inspection by the Company), then the registered holder of any
Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a new Warrant Agent. Any successor Warrant Agent, whether
appointed by the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of any State thereof,
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Warrant Agent a combined capital and
surplus of at least $5,000,000. After appointment, the successor Warrant Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Warrant Agent without further act or deed; but
the predecessor Warrant Agent shall deliver and transfer to the successor
Warrant Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of such appointment the Company shall
file notice thereof in writing with the predecessor Warrant Agent and each
transfer agent of the Common Stock, and mail a notice thereof in writing to the
registered holders of the Warrant Certificates. Failure to give any notice
provided for in this Section 20, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Warrant
Agent or the appointment of the successor Warrant Agent, as the case may be.
SECTION 21. IDENTITY OF TRANSFER AGENT. Forthwith upon the appointment
of any subsequent Transfer Agent for shares of the Common Stock, the Company
will file with the Warrant Agent a statement setting forth the name and address
of such Transfer Agent.
SECTION 22. NOTICES. Any notice pursuant to this Agreement to be given
by the Warrant Agent or by the registered holder of any Warrant to the Company
shall be sufficiently given if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Company with the
Warrant Agent) as follows:
IGENE Biotechnology, Inc.
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Attention: President
Any notice pursuant to this Agreement to be given by the Company or by the
registered holder of any Warrant to the Warrant Agent shall be sufficiently
given if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company) as follows:
American Stock Transfer & Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: __________
SECTION 23. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 24. GOVERNING LAW. This Agreement and each Warrant issued
hereunder shall be deemed to be a contract made under the laws of New York, and
for all purposes shall be construed in accordance with the laws of New York,
without regard to principles of conflict of laws.
SECTION 25. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
SECTION 26. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
SECTION 27. REGISTRATION OF SHARES OF COMMON STOCK. The Company will
furnish to the Warrant Agent, upon request, an opinion of counsel to the effect
that (i) a Registration Statement under the Securities Act of 1933 is then in
effect with respect to the Warrants and/or the shares of Warrant Common Stock
issuable upon exercise of the Warrants and the Prospectuses hereinafter referred
to comply as to form in all material respects with the requirements of said Act
and the rules and regulations of the Securities and Exchange Commission
thereunder; or (ii) a Registration Statement under said Act with respect to said
warrants and/or shares is not required. In the event that said opinion states
that such a Registration Statement is in effect the Company will, from time to
time, furnish the Warrant Agent with current Prospectuses meeting the
requirements of said Act and all rules and regulations thereunder in sufficient
quantity to permit the Warrant Agent to deliver a Prospectus to each transferee
of a Warrant Certificate and each holder of a Warrant Certificate upon exercise
thereof. The Company further agrees to pay all fees, costs and expenses in
connection with the preparation and delivery to the Warrant Agent of the
foregoing opinions and Prospectuses.
If any shares of Warrant Common Stock issuable upon the exercise of
the Warrants or the issuance thereof requires registration or approval of any
governmental authority, including, without limitation, the filing of necessary
amendments, supplements or post-effective amendments to a Registration Statement
of the Company under the Securities Act of 1933, or the taking of any other
action under the laws of the United States of America or any political
subdivision hereof or under the laws of any state of the United States of
America before such shares may be validly and legally issued, then the Company
covenants that it will in good faith and as expeditiously as possible endeavor
to secure and keep effective such registration or approval or to take such other
action, as the case may be. Notwithstanding anything to the contrary contained
herein, the Company shall not be obligated to deliver any securities pursuant to
the exercise of a Warrant unless a registration statement under the Securities
Act of 1933 with respect to the securities is effective.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be executed and delivered as of the day and year first above
written.
IGENE BIOTECHNOLOGY, INC.
By:_________________________
Its:_____________________
Attest:
----------------------------
Its:_____________________
American Stock Transfer & Trust Company
as Warrant Agent
By:_________________________
Its:_____________________
Attest:
----------------------------
Its:_____________________
EXHIBIT A
EXERCISABLE AT ANY TIME AT OR PRIOR TO
3:30 P.M. NEW YORK CITY TIME
ON ________ __, 2008
WARRANT CERTIFICATE
IGENE BIOTECHNOLOGY, INC.
NO. W-
This certifies that _____________________________ or registered
assigns is the registered holder of the number of Warrants set forth above, and
is entitled, upon surrender of this Warrant Certificate at the office of
American Stock Transfer & Trust Company, Warrant Agent (or any successor as such
Warrant Agent), in the City of New York, State of New York, at any time on or
after the date hereof and at or prior to 3:30 p.m. New York City Time on ______
__, 2008, to purchase one share of Common Stock, par value $.01, of IGENE
Biotechnology, Inc., a Maryland corporation (the "Company"), at the price of
$.10 per whole share.
The applicable per share purchase price shown above and the number of
shares issuable upon exercise of the Warrants represented by this Warrant
Certificate are subject to adjustment for the occurrence of certain events,
including stock dividends and split-ups, combinations, reorganizations,
reclassifications, consolidations, mergers or sales of properties and assets, as
set forth in the Warrant Agreement hereinafter referred to. A complete statement
with respect to such adjustments and to other terms and conditions pertaining to
the Warrants is contained in the Warrant Agreement, dated as of ______ __ 1998,
between the Company and American Stock Transfer & Trust Company, Warrant Agent,
a copy of which may be examined by the registered holder hereof at the office of
the Warrant Agent.
To exercise the Warrants represented by this Warrant Certificate the
form of election to purchase on the reverse hereof must be duly executed and the
accompanying instructions for the registration and delivery of the stock must be
filled in.
The Warrants represented by this Warrant Certificate are transferable
(subject to the conditions set forth in the preceding paragraphs) at the office
in the City of New York, State of New York, of the Warrant Agent (or of its
successor as Warrant Agent) by the registered holder thereof in person or by
attorney duly authorized in writing, upon surrender of this Warrant Certificate.
Upon any such transfer, a new Warrant Certificate, representing the right to
purchase a like number of shares of the Company's Common Stock, will be issued
to the transferee in exchange for this Warrant Certificate.
This Warrant Certificate and similar Warrant Certificates when
surrendered at the office in the City of New York, State of New York of the
Warrant Agent (or of its successor as Warrant Agent) by the registered holder
hereof in person or by attorney duly authorized in writing may be exchanged for
another Warrant Certificate or Warrant Certificates, representing in the
aggregate the right to purchase a like number of shares of the Company's Common
Stock.
If the Warrants evidenced by this Warrant Certificate remain
outstanding at the expiration of the period during which Warrants are
exercisable, as set forth in the first paragraph of this Warrant Certificate,
such Warrants shall thereupon be deemed null and void.
No fractional shares of Common Stock will be issued upon the exercise
of any Warrant or Warrants evidenced hereby, but in lieu thereof, a cash payment
will be made, as provided in the Warrant Agreement.
No holder of this Warrant Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Common Stock or of
any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Warrant Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issue of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or, except as provided in the Warrant Agreement, to
receive notice of meetings, or to receive dividends or subscription rights or
otherwise, until the Warrant or Warrants evidenced by this Warrant Certificate
shall have been exercised as provided in the Warrant Agreement.
IGENE BIOTECHNOLOGY, INC.
By: ________________________
Its: ___________________
Attest:
-----------------------------
SECRETARY
This Warrant Certificate is not valid until countersigned by the
Warrant Agent.
Dated: Countersigned:
American Stock Transfer & Trust Company,
as Warrant Agent,
By:_________________________
AUTHORIZED OFFICER
FORM OF ELECTION TO PURCHASE
(FORM OF EXERCISE TO BE EXECUTED BY THE WARRANT HOLDER AT THE TIME OF
EXERCISE IN ACCORDANCE WITH THE WARRANT AGREEMENT)
To American Stock Transfer & Trust Company, or its successor as WARRANT AGENT:
The undersigned, holder of the within Warrant Certificate, hereby (1)
irrevocably exercises the undersigned's right to purchase _________ shares of
Common Stock, par value $0.01 per share, of IGENE Biotechnology, Inc. (the
"Company") which the undersigned is entitled to purchase under the terms of the
within Warrant Certificate, or such other securities as the undersigned shall be
entitled to purchase under the terms of the Warrant Agreement referred to in
such Warrant Certificate by reason of the occurrence of certain events specified
therein, and (2) (a) elects to make payment in full for the number of shares of
Common Stock so purchased by payment of $______ in cash or by certified or
official bank check, (b) surrenders securities having a Current Marking Price of
$___, (c) surrenders for cancellation notes or debt securities of the Company,
(d) elects to receive the difference between Current Market Price and Warrant
Price, payable in shares of Common Stock, or (e) a combination of the above as
follows:____
Please issue the certificate for shares of Common Stock in the name
of, and pay any cash for any fractional share to:
----------------------------------------------------------------
Print or type name
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Social Security or other Identifying Number
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Street Address
----------------------------------------------------------------
City State Zip Code
If such number of shares shall not be all the shares purchasable upon the
exercise of the Warrants evidenced by this Warrant Certificate, a new Warrant
Certificate for the balance of such Warrants remaining unexercised shall be
registered in the name of and delivered to:
Please insert social security or other identifying number:
(Please print name and address)
Dated: _______________
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant Certificate)
(Signature Medallion Guaranteed): ___________________ Date: ________________
(If the Common Stock, cash in lieu of fractional shares, or Warrants for any
unexercised balance are to be issued or paid to a person other than the person
in whose name the within Warrant is registered, or if otherwise requested by the
Company or the Warrant Agent, a signature Medallion guarantee is required.)
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT
HOLDER DESIRES TO TRANSFER WARRANT)
FOR VALUE RECEIVED, __________________________________ hereby sells,
assigns, and transfer unto ____________________ this Warrant Certificate
together with all right, title or interest therein and does hereby irrevocably
appoint ___________________ attorney to transfer the within Warrant Certificate
on the books of the Warrant Agent with full power of substitution in the
premises.
Dated: _____________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
(Signature Medallion Guaranteed):________________ Date:______________________