EXHIBIT 3.1
IGENE BIOTECHNOLOGY, INC.
ARTICLES OF AMENDMENT
IGENE Biotechnology, Inc., a Maryland corporation, having its principal
office in Columbia, Maryland (the "Corporation"), hereby certifies to the State
Department of Assessments and Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended by striking out
Article FIFTH and inserting in lieu thereof the following:
"FIFTH: The total number of shares of stock
of all classes which the Corporation has
authority to issue is Two Hundred Fifty One
Million Five Hundred Thousand (251,500,000)
shares divided into Two Hundred Fifty Million
(250,000,000) shares par value of One Cent
($.01) per share of Common Stock, having an
aggregate par value of Two Million Five
Hundred Thousand Dollars ($2,500,000.00) and
One Million Five Hundred Thousand (1,500,000)
shares of the par value of One Cent ($.01)
per share of Preferred Stock having an
aggregate par value of Fifteen Thousand
Dollars ($15,000.00). The aggregate par value
of all shares of stock is Two Million Five
Hundred Fifteen Thousand Dollars
($2,515,000.00)."
SECOND: The Board of Directors of the Corporation, at a meeting duly
convened and held on September 19, 1997, adopted a resolution in which was set
forth the foregoing amendment to the charter, declaring that the said amendment
to the charter was advisable and directing that it be submitted for action
thereon at the annual meeting of the stockholders of the Corporation to be held
on November 17, 1997.
THIRD: Notice setting forth the aforesaid amendment of the charter and
stating that a purpose of the meeting of the stockholders would be to take
action thereon, was given as required by law, to all stockholders of the
Corporation entitled to vote thereon. The amendment of the charter of the
Corporation as hereinabove set forth was approved by the stockholders of the
Corporation at said meeting by the affirmative vote required by law.
FOURTH: (a) The total number of shares of all classes of stock of the
Corporation heretofore authorized, and the number and par value of the shares of
each class were as follows:
The total number of shares of all classes was 36,500,000, divided
into two classes as follows:
35,000,000 shares of Common Stock, par value $.01 per share
and 1,500,000 shares of Preferred Stock, par value $.01 per share
(b) The total number of shares of all classes of stock of the
Corporation as increased, and the number and par value of the shares of each
class, are as follows:
The total number of shares of stock of all classes is 251,500,000,
divided into two classes as follows:
250,000,000 shares of Common Stock, par value $.01 per share
and 1,500,000 shares of Preferred Stock, par value $.01 per share
(c) The aggregate par value of all shares of all classes of stock
of the Corporation heretofore authorized was $365,000. The aggregate par value
of all shares of all classes of stock as increased by this amendment is
$2,515,000. This amendment has the effect of increasing the aggregate par value
of all shares of all classes of stock of the Corporation by $2,150,000.
IN WITNESS WHEREOF, IGENE Biotechnology, Inc. has caused this instrument to
be signed in its name and on its behalf by its Chief Executive Officer and its
corporate seal to be hereunto affixed and attested by its Secretary.
The undersigned acknowledges these Article of Amendment to be the corporate
act of the Corporation and states that to the best of his knowledge, information
and belief the matters and facts set forth therein with respect to the
authorization and approval thereof are true in all material respects and that
this statement is made under the penalties of perjury.
Attest: IGENE Biotechnology, Inc.
__________________________ ______________________________
Stephen F. Hiu Ramin Abrishamian
Secretary Chief Executive Officer
[affix corporate seal]
Dated as of November 17, 1997
IGENE BIOTECHNOLOGY, INC.
MEETING OF THE BOARD OF DIRECTORS
April 3, 1991
A regular meeting of the Board of Directors of IGENE Biotechnology, Inc. (the
"Company") was held at the offices of SRK Management, 126 East 56th Street, New
York, N.Y. at 10:15 a.m. The meeting was chaired by Mr. John A. Cenerazzo,
Chairman of the Board of the Company. The following Directors of the Company
were present:
Joseph C. Abeles
John A. Cenerazzo
Stephen F. Hiu
Thomas L. Kempner
Michael G. Kimelman
Anthony B. Low-Beer
Sidney R. Knafel was unable to attend.
In addition to the Directors of the Company, Gisela Harbs of Abel Associates,
Victoria Hamilton of SRK Management, Mary Losti of M. Kimelman & Co., Bruce Lev
of Lev, Spalter, Berlin, Certilman & Lipson, and Patrick Monahan of IGENE were
present at the Meeting as guests of the Board.
The Meeting was called to order by Mr. Cenerazzo.
Mr. Cenerazzo first asked the Directors to approve the Minutes of the Board
Meeting of February 28, 1991 which had previously been circulated to all
Directors. There being no amendments and upon a motion duly made and seconded,
the Minutes were unanimously approved.
Mr. Cenerazzo announced his decision to resign as Chairman of the Board of
Directors and recommended that Michael G. Kimelman be appointed Chairman. It was
also suggested that Mr. Patrick Monahan be appointed a Director of the Company
taking the seat vacated by Robert Fiertz who had resigned on March 15, 1991.
Following discussion, upon motion duly made, seconded and unanimously approved,
it was:
RESOLVED, that Michael G. Kimelman is elected to serve as Chairman of
the Board of Directors of the Company, and
FURTHER RESOLVED that Patrick F. Monahan be appointed a director of
the Company to serve until nominees for directors are elected in the
1991 Annual Meeting of Shareholders.
Dr. Hiu next presented a financial report and described current operations at
the Company since the last meeting:
* The overdue invoice from Venable, Baetjer and Howard
will be reviewed by Bruce Lev.
* Consolidation into 8,240 sq. ft. of space will be
completed in 2 weeks. Rent has been reduced
because of the consolidation.
* Accounting functions will be performed by Ralph Smith
and Phillip Gugliotti on a consulting basis.
* Salaries and job functions of all employees were
discussed.
Dr. Hiu then reminded the Board that the resignation of Mr. Fiertz necessitated
changes in the signatories of the Company with regard to the Company's cash
accounts. After discussion of this matter and upon a motion duly made, seconded
and unanimously approved, it was
RESOLVED, that the corporate banking resolutions addressed in a
Unanimous Consent previously circulated to all directors and made
effective on March 15, 1991 be hereby ratified, and
FURTHER RESOLVED, that the appropriate banking resolutions changing
the signatory of the Company's payroll account be hereby approved, and
FURTHER RESOLVED that Stephen F. Hiu, as president of the Company, be
appointed the Company's resident agent in Maryland.
The Directors next discussed plans for the Annual Meeting of Stockholders,
including the nomination of Directors and selection of independent auditors for
1991.
Following the discussion, upon motion duly made and seconded, it was unanimously
RESOLVED, that the annual meeting (the "Meeting") of stockholders be
held on Thursday, June 27, 1991, at Manufacturers Hanover Trust
Company, 270 Park Avenue, Room 3, New York, New York at 10:00 a.m.;
and
FURTHER RESOLVED, that holders of 8% Cumulative Convertible Preferred
Stock, Series A ("Preferred Stock") or Common Stock, of record on May
8, 1991, be entitled to notice of and to vote at the Meeting; and
FURTHER RESOLVED, that the number of directors beginning as of the
date of the Meeting shall be eight, provided that, if the holders of
Preferred Stock exercise their right to elect two directors, the Board
shall be expanded to ten to include the directors elected by holders
of Preferred Stock; and
FURTHER RESOLVED, that the following persons are nominated to serve as
directors for the ensuing year:
Joseph C. Abeles
John A. Cenerazzo
Stephen F. Hiu
Thomas L. Kempner
Michael G. Kimelman
Anthony B. Low-Beer
Sidney R. Knafel
Patrick F. Monahan
and;
FURTHER RESOLVED, that the accounting firm of Berenson, Berenson,
Adler and Co. be selected as independent auditors of the Company for
the year December 31, 1991.
Mr. Manahan next updated the Directors on manufacturing operations in Chile:
* High pigment titers have been achieved in the small
fermentors.
* Installation of dryer is behind schedule about 2
weeks, but this is not a bottleneck.
Sterilization equipment necessary for longer
fermentors has arrived.
* Fundacion Chile is very pleased with results of their
feeding trials with AstaXin(R).
* IGENE will supply AstaXin(R) for feeding study to be
conducted by Washington State University and
Fundacion Chile.
The directors next discussed ClandoSan(R) manufacturing and sales. Dr. Hiu told
the directors that Anne E. Robinson would be hired on a part-time basis as a
marketing consultant for this product and will make a recommendation to the
Board regarding the product's future.
The next meeting of the Board of Directors is tentatively scheduled for May 20th
at the offices of SRK Management.
There being no further business, upon a motion duly made, seconded and approved,
the Meeting was adjourned at 12:00 noon.
Respectfully Submitted:
-------------------------
Stephen F. Hiu, Ph.D.
Secretary
Approval: ________________________
IGENE BIOTECHNOLOGY, INC.
ARTICLES OF AMENDMENT
IGENE Biotechnology, Inc., a Maryland corporation having its principal
office in Howard County, Maryland (hereinafter called the "Corporation"), hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: The Charter of the Corporation is hereby amended by striking
out Article FIFTH and inserting in lieu thereof the following:
"FIFTH: The total number of shares of stock of all classes which
the Corporation has authority to issue is 36,500,000 shares
divided into 35,000,000 shares of Common Stock, par value $.01
per share, having an aggregate par value of $350,000 and
1,500,000 shares of Preferred Stock, par value $.01 per share,
having an aggregate par value of $15,000. The aggregate par value
of all shares of stock is $365,000."
SECOND: The board of directors of the Corporation, at a meeting duly
convened and held on July 10, 1990, adopted a resolution in which was set forth
the foregoing amendment to the charter, declaring that the said amendment to the
charter was advisable and directing that it be submitted for action thereon at
the annual meeting of the stockholders of the Corporation to be held on August
8, 1990 or at any adjournment thereof.
THIRD: Notice setting forth the aforesaid amendment of the charter and
stating that a purpose of the meeting of the stockholders would be to take
action thereon, was given as required by law, to all stockholders of the
Corporation entitled to vote thereon. The amendment of the charter of the
Corporation as hereinabove set forth was approved by the stockholders of the
Corporation at said meeting by the affirmative vote required by law.
FOURTH: (a) The total number of shares of all classes of stock of the
Corporation heretofore authorized, and the number and par value of the shares of
each class were as follows:
The total number of shares of stock of all classes was
11,500,000, divided into two classes as follows:
10,000,000 shares of Common Stock, par value $.01 per share and
1,500,000 shares of Preferred Stock, par value $.01 per share
(b) The total number of shares of all classes of stock of the
Corporation as increased, and the number and par value of the shares of each
class, are as follows:
The total number of shares of stock of all classes is 36,500,000,
divided into two classes as follows:
35,000,000 shares of Common Stock, par value $.01 per share and
1,500,000 shares of Preferred Stock, par value $.01 per share
(c) The aggregate par value of all shares of all classes of
stock of the Corporation heretofore authorized was $115,000. The aggregate par
value of all shares of all classes of stock as increased by this amendment is
$365,000. This amendment has the effect of increasing the aggregate par value of
all shares of all classes of stock of the Corporation by $250,000.
IN WITNESS WHEREOF IGENE Biotechnology, Inc. has caused these presents
to be signed in its name and on its behalf by its President and its corporate
seal to be hereunto affixed and attested by its Secretary.
The undersigned acknowledges these Articles of Amendment to be the
corporate act of the Corporation and states that to the best of his knowledge,
information and belief the matters and facts set forth therein with respect to
the authorization and approval thereof are true in all material respects and
that this statement is made under the penalties of perjury.
Attest: IGENE Biotechnology, Inc.
_________________________ By: ___________________________
Stephen F. Hiu, Secretary Robert E. Fiertz, President
[Affix corporate seal]
Dated as of August 8, 1990
IGENE BIOTECHNOLOGY, INC.
ARTICLES OF AMENDMENT
IGENE Biotechnology, Inc., a Maryland corporation having its principal
office in Columbia, Maryland (hereinafter called the "Corporation"), hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended by striking out
Article Eight and inserting in lieu thereof the following:
"Eighth. (a) The liability of directors and officers to
the Corporation and its stockholders for money damages
shall be limited to the maximum extent that the
liability of directors and officers of Maryland
corporations is permitted to be limited by Maryland
law. This limitation on liability shall apply to events
occurring at the time a person serves as a director or
officer of the Corporation whether or not such person
is a director or officer at the time of any proceeding
in which liability is asserted. Neither the amendment
or repeal of this subparagraph or adoption of any
provision of these Articles of Incorporation
inconsistent with this subparagraph shall eliminate or
reduce this protection offered by this subparagraph to
a director or officer of the Corporation with respect
to any act or omission which occurred prior to such
amendment, repeal or adoption.
(b) To the maximum extent permitted by Maryland
law, the Corporation shall indemnify its current acting and
its former directors and officers against any and all
liabilities and expenses incurred in connection with
their services in such capacities, and shall indemnify,
to the same extent, its employees and agents and
persons who serve and have served, at its request as a
director, officer, partner, trustee, employee or agent
of another corporation, partnership, joint venture or
other enterprise. The Corporation shall advance
expenses to its directors, officers and the other
persons referred above to the extent permitted by
Maryland law. The Board of Directors may by Bylaw,
resolution or agreement make further provision for or
limit such indemnification of directors, officers,
employees and agents to the extent permitted by
Maryland law. Neither the amendment or repeal of this
subparagraph, nor adoption of any provision of these
Articles of Incorporation inconsistent with this
subparagraph shall eliminate or reduce the protection
afforded by this subparagraph to a director or officer
of the Corporation with respect to any act or omission
which occurred prior to such amendment, repeal or
adoption.
(c) References to the Maryland law include the
Maryland General Corporation Law as from time to time
amended."
SECOND: The Board of Directors of the Corporation, at a meeting duly
convened and held on April 7, 1988, duly adopted a resolution in which was set
forth the foregoing amendment to the charter, declaring that the said amendment
to the charter was advisable and directing that it be submitted for action
thereon at a meeting of the stockholders of the Corporation to be held on May 9,
1988.
THIRD: Notice setting forth the aforesaid amendment of the charter and
stating that a purpose of the meeting of the stockholders would be to take
action thereon, was given as required by law, to all stockholders of the
Corporation entitled to vote thereon. The amendment of the charter of the
Corporation as hereinabove set forth was approved by the stockholders of the
Corporation at said meeting by the affirmative vote required by law.
IN WITNESS WHEREOF IGENE Biotechnology, Inc. has caused this instrument to
be signed in its name and on its behalf by its Executive Vice President and its
corporate seal to be hereunto affixed and attested by its Assistant Secretary.
The undersigned acknowledges these Articles of Amendment to be the
corporate act of the Corporation and states that to the best of his knowledge,
information and belief the matters and facts set forth therein with respect to
the authorization and approval thereof are true in all material respects and
that this statement is made under the penalties of perjury.
Attest: IGENE Biotechnology, Inc.
- --------------------- ---------------------------
Phillip J. Gugliotti William T. Hall
Assistant Secretary Executive Vice President
IGENE BIOTECHNOLOGY, INC.
ARTICLES SUPPLEMENTARY
IGENE BIOTECHNOLOGY, INC., a Maryland corporation having its principal
office in Columbia, Maryland, hereby certifies to the State Department of
Assessments and Taxation of Maryland that:
FIRST: Pursuant to authority contained in the Charter the Board of
Directors has classified One Million Fifty Thousand (1,050,000) shares of the
One Million Five Hundred Thousand (1,500,000) shares of authorized but unissued
shares of Preferred Stock into 8% Cumulative Convertible Preferred Stock, Series
A.
SECOND: A description of the 8% Cumulative Preferred Stock, Series A, is as
follows:
Section 1. 8% CUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES A
Shares of the Preferred Stock of the Corporation, par value $.01 per share
are hereby constituted as the original number of shares of a series of Preferred
Stock designated as 8% Cumulative Convertible Preferred Stock, Series A ("Series
A Stock").
Section 2. DIVIDENDS
Holders of shares of Series A Stock will be entitled to receive, when and
as declared by the Board of Directors of the Corporation out of assets of the
Corporation legally available for payment, an annual cash dividend of $.64 per
share, payable in arrears in equal quarterly installments on January 1, April 1,
July 1, and October 1, commencing January 1, 1988. Dividends on the Series A
Stock will be cumulative from the date of original issue. Dividends will be
payable to holders of record as they appear on the stock books of the
Corporation on such record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the Board of Directors
of the Corporation or a duly authorized committee thereof. Unless full
cumulative dividends on all outstanding shares of Series A Stock or any other
class of preferred stock ranking on a parity with the Series A Stock as to
dividends and upon liquidation ("Parity Stock") have been paid at the time such
dividends are payable or are contemporaneously declared and paid (or declared
and a sum sufficient for the payment thereof is set apart for such payment), the
Corporation will not (a) declare or pay any dividend on the Common Stock $.01
par value (the "Common Stock"), of the Corporation or on any other class of
stock ranking junior to the Series A Stock as to dividends and upon liquidation
(the Common Stock and any such junior class being the "Junior Stock") or make
any payment on account of, or set apart money for, a sinking or other analogous
fund for, the purchase, redemption or other retirement of, any Junior Stock or
make any distribution in respect thereof, either directly or indirectly and
whether in cash or property or in obligations or shares of the Corporation
(other than in shares of Junior Stock) or (b) purchase any shares of Series A
Stock or Parity Stock whether pursuant to a sinking fund redemption or otherwise
(except for consideration payable in Junior Stock) or redeem fewer than all of
the shares of Series A Stock or Parity Stock then outstanding. Unless and until
all dividends accrued and payable but unpaid on the Series A Stock and any
Parity Stock at the time outstanding have been paid in full, all dividends
declared by the Corporation upon such Series A Stock or Parity Stock shall be
declared pro rata with respect to all Series A Stock and Parity Stock then
outstanding, so that the amounts of any dividends declared on the Series A Stock
and such Party Stock shall in all cases bearing each other the same ratio that,
at the time of such declaration, all accrued and payable but unpaid dividends on
the Series A Stock and such other Parity Stock, respectively, bear to each
other.
Section 3. CONVERSION
3.01. CONVERSION PRIVILEGE. Subject to and upon compliance with the
provisions of this Section 3, at the option of each holder of shares of Series A
Stock, each share of Series A Stock may at any time during usual business hours
prior to October 1, 2002 (or if the Series A Stock or portion thereof is called
for redemption prior to October 1, 2002, then in respect of shares of the Series
A Stock to and including but not after the close of business on the fifth day
prior to the date fixed for such redemption) be converted into fully paid and
nonassessable shares of Common Stock of the Company at the conversion price in
effect at the date of conversion. The conversion price shall be initially $4.00
per share of Common Stock (so that each share of Series A Stock, issued for
$8.00, shall be initially convertible into two shares of Common Stock). The
conversion price shall be adjusted in certain instances as provided in
Subsection 3.05 and as so adjusted is herein referred to as the "Conversion
Price." No adjustment in the conversion price shall be made by reason of the
issuance of Series A Stock pursuant to the proposed Subscription Offering (the
"Subscription Offering") by the Company, as defined and described in the Private
Placement Memorandum dated September 25, 1987. The stated value of the Series A
Stock is $8.00 per share.
3.02. MANNER OF EXERCISE OF CONVERSION PRIVILEGE. Any holder of
shares of Series A Stock desiring to convert the same into shares of Common
Stock shall surrender the certificate or certificates for the shares of Series A
Stock being converted, duly endorsed or assigned to the Corporation or in blank,
at the principal office of the Corporation or at a bank or trust company
appointed by the Corporation for that purpose, accompanied by a written notice
of conversion specifying the number (in whole shares) of shares of Series A
Stock to be converted and the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock to be issued; in case
such notice shall specify a name or names other than that of such holder, such
notice shall be accompanied by payment of all transfer taxes payable upon the
issue of shares of Common Stock in such name or names and an opinion of counsel
acceptable to the Company in form acceptable to the Company that such transfer
or issuance may be effected without registration or qualification under any
state or federal law. In case fewer than all of the shares of Series A Stock
represented by a certificate are to be converted by a holder, upon such
conversion the Corporation shall issue and deliver or cause to be issued and
delivered, to the holder a certificate or certificates for the shares of Series
A Stock not so converted. The holders of shares of Series A Stock at the close
of business on a dividend payment record date shall be entitled to receive the
dividend payable on such shares (except shares called for redemption on a
redemption date between such record date and the dividend payment date) on the
corresponding dividend payment date notwithstanding the conversion thereof.
However, shares of Series A Stock surrendered for conversion during the period
from the close of business on any dividend payment record date for the Series A
Stock to the opening of business on the corresponding dividend payment date
(except shares called for redemption on a redemption date during such period for
which no dividend shall be payable) must be accompanied by payment of an amount
equal to the dividend payable on such shares on such dividend payment date;
provided, however, that no such payment need be made if there shall exist at the
time of the conversion a default in payment of dividends; further provided, the
Corporation shall return to such holder any funds received from the holder if no
dividend is paid on the corresponding dividend payment date. A holder of shares
of Series A Stock on a dividend payment record date who (or whose transferee)
converts shares of Series A Stock on a dividend payment date will receive the
dividend payable on such shares by the Corporation on such date, and the
converting holder need not include payment in the amount of such dividend upon
surrender of shares of Series A Stock for conversion. Except as provided above,
no payment or adjustment will be made on account of accrued or unpaid dividends
upon the conversion of shares of Series A Stock.
3.03. FRACTIONAL SHARES. No fractional shares of Common Stock shall
be issued upon conversions of shares of the Series A Stock. Instead of any
fractional share of Common Stock which would otherwise be issuable upon
conversion of shares of the Series A Stock, the Company shall pay a cash
adjustment in respect of such fractional interest in an amount equal to the
market value of such fractional interest computed on the basis of the prevailing
market value of the Common Stock in the open market as determined by the
Company, which determination shall be conclusive.
3.04. ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment of the
Conversion Price for any stock dividend or distribution or any subdivision or
combination of the outstanding shares of the Common Stock of the Company as
provided in Subsection 3.05, the holder of shares of the Series A Stock shall
thereafter be entitled to purchase, at the Conversion Price resulting from such
adjustment, the number of shares (calculated to the nearest tenth of a share)
obtained by multiplying the Conversion Price in effect immediately prior to such
adjustment by the number of shares purchasable pursuant hereto immediately prior
to such adjustment and dividing the product thereof by the Conversion Price
resulting from such adjustment.
3.05. ADJUSTMENT OF CONVERSION PRICE; EFFECT OF CONSOLIDATION,
MERGER, OR SALE.
(a) The Conversion Price shall be subject to adjustment from
time to time after October 1, 1987, as follows:
(i) In case the Company shall (A) pay a dividend or make a
distribution in shares of its capital stock (whether shares of Common Stock or
of capital stock of any other class), (B) subdivide its outstanding shares of
Common Stock, (C) combine its outstanding shares of Common Stock into a smaller
number of shares, or (D) issue by reclassification of its shares of Common Stock
any shares of capital stock of the Company, the conversion privilege and the
Conversion Price in effect immediately prior to such action shall be adjusted so
that each holder of shares of Series A Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares of capital stock of
the Company which holder would have owned immediately following such action had
the shares of Series A Stock been converted immediately prior thereto. An
adjustment made pursuant to this Subsection (i) shall become effective
retroactively immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification. If, as a result of
an adjustment made pursuant to this Subsection (i), the holder of the shares of
Series A Stock thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes of capital stock of the Company, the Board
of Directors (whose determination shall be conclusive) shall determine the
allocation of the adjusted conversion rate between or among shares of such
classes of capital stock.
(ii) In case the Company shall issue rights or warrants
(other than shares in the Subscription Offering, with respect to which this
Section shall be inapplicable) to all holders of its Common Stock entitling them
(for a period expiring within 45 days after the record date mentioned below) to
subscribe for or purchase shares of Common Stock at a price per share less than
the current market price per share (as determined pursuant to Subsection (iv)
below) on the record date mentioned below, the Conversion Price shall be
adjusted so that the same shall equal the rate determined by multiplying the
Conversion Price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction of which the denominator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered for
subscription or purchase, and of which the numerator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of shares which the aggregate offering price of the
total number of shares so offered would purchase at such current market price.
Such adjustment shall become effective retroactively immediately after the
record date for the determination of stockholders entitled to receive such
rights or warrants.
(iii) In case the Company shall distribute to all holders
of its Common Stock evidences of its indebtedness or assets (excluding any cash
dividend paid from retained earnings of the Company) or rights or warrants to
subscribe to securities of the Company (excluding those referred to in
Subsection (ii) above and excluding the right to subscribe for Series A Stock in
the Subscription Offering, as to which this section shall be inapplicable) then
in each such case the Conversion Price shall be adjusted so that the same shall
equal the rate determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction of which the
denominator shall be the current market price per share (determined as provided
in Subsection (iv) below) of the Common Stock on the record date mentioned
below, and of which the numerator shall be such current market price per share
of Common Stock less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of the
portion of the assets or evidences of indebtedness so distributed or of such
subscription rights or warrants applicable to one share of Common Stock. Such
adjustment shall become effective retroactively immediately after the record
date for the determination of stockholders entitled to receive such
distribution.
(iv) For the purpose of any computation under Subsection
(a)(ii) and (iii) above, the current market price per share of Common Stock on
any date shall be deemed to be 100% of the average of the daily closing prices
for 30 consecutive business days commencing 45 business days before the day in
question. The closing price for each day shall be the average of the closing bid
and asked prices reported by the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or if the Common Stock is quoted on the
NASDAQ National Market System, the last reported sale price on the NASDAQ
National Market System or, in case no such reported sales takes place on such
day, the average of the reported closing bid and asked quotations in such
System, or, if the Common Stock is listed on any national securities exchange,
the last reported sale price regular way on such exchange, or if no such
quotations are available, the fair market price as determined by the Board of
Directors of the Company (whose determination shall be conclusive).
(v) In any case in which the Section 3.05 shall require
that an adjustment be made retroactively immediately following a record date,
the Company may elect to defer for not more than 45 days issuing to the holder
of any shares converted after such record date (x) the shares of Common Stock
and other capital stock of the Company issuable upon such conversion over and
above (y) the shares of Common Stock and other capital stock of the Company
issuable upon such conversion only on the basis of the conversion price prior to
adjustment.
(vi) No adjustment in the Conversion 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 Subsection (vi) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and, provided further that
adjustment shall be required and made in accordance with the provisions of this
Section 3.05 (other than this Subsection (vi) not later than such time as may be
required in order to preserve the tax-free nature of a distribution to the
holders of shares of Common Stock). All calculations under this Section 3.05
shall be made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be. Anything in this Section 3.05 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Conversion Price in
addition to those required by this Section 3.05, as it in its discretion shall
determine to be advisable in order that any such dividends, subdivision of
shares, distribution of rights to purchase stock or securities, or distribution
of securities convertible into or exchangeable for stock hereafter made by the
Company to its stockholders shall not be taxable.
(vii) The term "Common Stock" shall mean the Corporation's
Common Stock as the same exists as of the date of these Articles Supplementary
or any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes from no par
value to par value or changes in par value. In the event that at any time as a
result of an adjustment made pursuant to this Section 3.05 the holders of the
Series A Stock thereafter surrendered for conversion shall become entitled to
receive any shares of the Company other than shares of its Common Stock,
thereafter the Conversion Price of such other shares so receivable upon
conversion of the Series A Stock shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in Subsections (i) through
(vi) above, and all other provisions of this Section 3 with respect to the
Common Stock shall apply on like or similar terms to any such other shares.
(b) If any of the following shall occur, namely: (i) any
reclassification or change of outstanding shares of Common Stock issuable upon
conversion of the Series A Stock (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination,) (ii) any consolidation, merger, or statutory share
exchange to which the Company is a party, other than a consolidation, merger, or
statutory share exchange in which consolidation, merger, statutory share
exchange the Company is a continuing corporation and which does not result in
any reclassification of, or change (other than a change in par value or from no
par value to par value, or as a result of a subdivision or combination) in,
outstanding shares of the Common Stock, or (iii) any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety, then the Company or such successor or purchasing
corporation, as the case shall be, lawful provision shall be made as a part of
the terms of such transaction whereby holders of shares of Series A Stock shall
receive upon conversion thereof, the kind and amount of shares of stock and
other securities and property receivable upon such consolidation, merger,
statutory share exchange, sale or conveyance by a holder of the number of shares
of Common Stock issuable upon conversion of shares of Series A Stock immediately
prior to such consolidation, merger, statutory share exchange, sale or
conveyance, subject to adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 3.05. The provisions
of this Subsection (b) shall similarly apply to successive consolidations,
mergers, statutory share exchanges, sales or conveyances.
(c) NOTICE OF ADJUSTMENT. Upon any adjustment of the Conversion
Price, then and in each such case the Company shall give written notice thereof,
by first class mail, postage prepaid, addressed to each holder of shares of
Series A Stock at the address of such holder as shown on the books of the
Company, which notice shall state the Conversion Price resulting from such
adjustment, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
(d) STOCK TO BE RESERVED. The Company will at all times reserve and
keep available out of its authorized Common Stock or its treasury shares, solely
for the purpose of issuance upon the exercise of the Series A Stock as herein
provided, such number of shares of Common Stock as shall then be issuable upon
the conversion of the Series A Stock. The Company covenants that all shares of
Common Stock which shall be so issued shall be duly and validly issued and fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issue thereof, and, without limiting the generality of the foregoing, the
Company covenants that it will from time to time take all such action as may be
required to assure that the par value per share of the Common Stock is at all
times equal to or less than the effective Conversion Price. The Company will not
take any action which results in any adjustment of the Conversion Price if the
total number of shares of Common Stock issued and issuable after such action
upon exercise of the Series A Stock would exceed the total number of shares of
Common Stock then authorized by the Company's Charter.
(e) ISSUE TAX. The issuance of certificates for shares of Common
Stock upon exercise of the Series A Stock shall be made without charge to the
holder hereof for any issuance tax in respect thereof, provided that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any certificate in a name
other than that of the holder.
(f) CLOSING OF BOOKS. The Company will at no time close its transfer
books against the transfer of the shares of Common Stock issued or issuable upon
the exercise of the Series A Stock in any manner which interferes with the
timely conversion of the Series A Stock.
Section 4. LIQUIDATION
4.01. LIQUIDATION PREFERENCE. In case of the voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, the
holders of any shares of Series A Stock are entitled to receive a liquidation
preference of $8.00 per share, plus an amount equal to the dividends accrued and
unpaid thereof to the payment date, before any distribution is made to the
holders of Junior Stock.
4.02. LIMITATIONS. The holders of share of Series A Stock and all
Parity Stock shall share ratably, in accordance with the respective amounts
payable thereon, in any such distribution which is not sufficient to pay in full
the aggregate of the amount payable thereon. After payment in full of the
liquidation price to which the holders of shares of Series A Stock are entitled,
the holders of shares of Series A Stock will not be entitled to any further
participation in any distribution of assets by the Corporation.
4.03. CONSOLIDATION, MERGER, ETC. Neither a consolidation or merger
of the Corporation with or into any other corporation, nor a merger of any other
corporation with or into the Corporation, nor a sale of transfer of all or
substantially all of the Corporation's assets for ____ or securities nor a
statutory share exchange in which stockholders of the Corporation may
participate shall be considered a liquidation, dissolution or winding-up of the
Corporation within the meaning of this Section 4.
Section 5. OPTIONAL REDEMPTION OF SERIES A STOCK
5.01. RIGHT OF REDEMPTION AND REDEMPTION PRICE. Subject to Section
2, the Series A Stock may be redeemed in whole or in part at any time beginning
on October 1, 1989, at a redemption price equal to $8.00 per share, plus accrued
and unpaid dividends, in the manner set forth in this Section 5, subject to the
conversion rights provided herein.
5.02. NOTICE OF REDEMPTION; PARTIAL REDEMPTION. In case the Company
shall desire to exercise such right to redeem all, or, as the case may be, any
of the shares of Series A Stock in accordance with the rights reserved so to do
or in case of sinking fund redemptions, it shall mail a notice of such
redemption in the case of an optional redemption or notice of the availability
of funds in the case of sinking fund redemptions not less than 30 nor more than
60 days prior to the date fixed for redemption to the holder of shares of Series
A Stock, at such holder's last address as it shall appear upon the registry
books maintained by the Company but any defect therein or failure of the
addressee to receive such notice shall not affect the validity of the
proceedings for the redemption of the shares of Series A Stock.
Each such notice of redemption or availability of funds for
redemption, as the case may be, shall specify the date fixed for redemption and
shall state the number of shares to be redeemed or for which funds are available
for redemption, and the payment thereof, together with accrued and unpaid
dividends to the date fixed for redemption, will be made at the principal
execution office of the Company. Such notice shall also state the Conversion
Price and the date on which the right to convert the shares of Series A Stock
into Common Stock will terminate. If all shares of Series A Stock outstanding
are called for redemption, the notice of redemption shall so state. In case of
an optional redemption, if fewer than all shares of Series A Stock outstanding
are to be redeemed, the shares to be redeemed shall be selected by lot or pro
rata or in some other equitable manner determined by the Corporation. If fewer
than all shares of Series A Stock are called for redemption, upon surrender
thereof a new certificate for the unredeemed shares will be issued without
charge to the holder. If the number of shares to be redeemed is a partial
redemption and are converted before the termination of the conversion right
resulting from such redemption, the converted shares shall be deemed (so far as
may be) to be the portion selected for redemption.
The Corporation may not redeem less than all of the Series A Stock
then outstanding if, as of such time, the Corporation has failed to pay all
accrued and unpaid dividends thereon or has failed to make a mandatory fund
redemption as described in Section 7.
5.03. NO ACCRUAL OF DIVIDENDS. If a notice of score redemption has
been given pursuant to this Section and if, on or before the date fixed for
redemption, the funds necessary for such redemption shall have been set aside by
the Corporation, separate and apart from its other funds, for the pro rata
benefit of the holders of the shares so called for redemption, then on and after
the redemption date, notwithstanding that any certificates for such shares have
not been surrendered for cancellation, dividends shall cease to accrue on the
shares of Series A Stock to be redeemed, such shares shall no longer be deemed
to be outstanding and all rights of the holders of such shares as stockholders
of the Corporation shall cease except the right to receive the monies payable
upon such redemption, without interest, upon surrender of the certificates
evidencing such shares.
Section 6. VOTING
6.01. RIGHT TO VOTE. Holders of shares of Series A Stock shall be
entitled to vote on all matters requiring stockholder approval as one class with
the holders of Common Stock except as provided in Section 6.02. Each holder of
Series A Stock shall be entitled to a number of votes equal to the number of
shares of Common Stock into which such holder of Series A Stock would be
entitled to convert his or her shares of Series A Stock as of the record date
set for determining stockholders entitled to vote.
6.02. DIVIDEND DEFAULTS.
(1) After October 1, 1989 if on the date used to determine
stockholders of record for any meeting of stockholders for the election of
directors, dividends on the shares of Series A or any Parity Stock shall not
have been paid on four consecutive dividend payment dates, the holders of shares
of Series A and the holders of shares of Parity Stock, voting together as a
single class, shall be entitled at such meeting to elect two Directors. Such
right to vote as a single class to elect two Directors shall, when vested,
continue until all dividends in default on the shares of Series A and such
Parity Stock, as the case may be, shall have been paid in full and, when so
paid, such right to elect two Directors separately as a class shall cease,
subject, always, to the same provisions for the vesting of such right to elect
two Directors separately as a class in the case of future dividend defaults.
(2) So long as any shares of Series A are outstanding and
default in dividends as described in Section 6.02(1) exists, the number of
Directors of the Corporation shall at all times be not more than eleven.
(3) Directors elected pursuant to paragraph (1) of this
Section 6.02 shall serve until the earlier of (x) the annual meeting of the
stockholders of the Corporation and the election (by the holders of shares of
Series A and Parity Stock) and the qualification of their respective successors
or (y) the date upon which all dividends in default on the shares of Series A
and such Parity Stock shall have been paid in full. Directors elected pursuant
to paragraph (1) of this Section 6.02 may be removed by, and shall not be
removed except by, the vote of the holders of record of Series A and Parity
Stock, voting together as a single class without regard to series, at a meeting
of the stockholders, or the holders of shares of Series A and Parity Stock,
called for that purpose. If, prior to the end of the term of any Director
elected as aforesaid, a vacancy in the office of such Director shall occur
during the continuance of a default in dividends on the shares of Series A or
such Priority Stock by reason other than removal, such vacancy shall be filled
for the unexpired term by the appointment by the remaining Director elected as
aforesaid of a new Director for the unexpired term of such former Director.
6.03. AMENDMENT OF RIGHT, PREFERENCES, ETC. The affirmative vote of
the holders of a majority of the shares of the Series A Stock shall be required
to amend, alter or repeal any of the provisions of these Articles Supplementary
which would materially and adversely change any right, preference, privilege or
voting power of the Series A Stock or of the holders thereof; provided, however,
that any increase in the amount of authorized Preferred Stock, the creation and
issuance of other series of Preferred Stock, whether ranking senior, on a parity
with or junior to the Series A Stock with respect to the payment of dividends
and the distribution of assets upon liquidation, shall not be deemed to affect
materially and adversely such rights, preferences, privileges or voting powers.
Where the shares of any Parity Stock are also materially and adversely affected
by such amendment, alteration or repeal, the holders of the Series A Stock and
Parity Stock shall vote as one class and the affirmative vote of the holders of
a majority of the shares of such class shall be required to approve.
The foregoing voting provisions shall not apply if no shares
of Series A Stock have been issued, at or prior to the time when the act with
respect to which such vote would otherwise be required shall be effected, all
outstanding shares of the Series A Stock shall have been redeemed or sufficient
funds shall have been deposited in trust in accordance with Section 5 to effect
such redemption.
Section 7. SINKING FUND
7.01. SINKING FUND REDEMPTIONS. Holders of Series A Stock may
surrender in the aggregate a number of shares equal to six percent (6%) of
shares of Series A Stock outstanding at the close of the Subscription
Offering for redemption on October 1 of each year in the years 1992 through
2001, and the balance of the shares of Series A Stock on October 1, 2002. For a
sinking fund for the redemption of the Series A Stock, the Corporation shall
make available, when and as appropriated by the Board of Directors, out of funds
legally available for the purpose, before October 1 in each of the years 1992 to
2002, inclusive, as a sinking fund payment, an amount in cash sufficient to
redeem on each such October 1 through 2001, in the aggregate a number of shares
equal to six percent (6%) of shares of Series A Stock outstanding at the close
of the Subscription Offering and on October 1, 2002 an amount of cash sufficient
to redeem the balance of the shares of Series A Stock; each such sinking fund
payment shall be applied on each such October 1 to the redemption, at $8.00 per
share, of Series A Stock surrendered to the Corporation by the holders of the
Series A Stock for redemption, plus an amount equal to the dividends accrued and
unpaid on such shares to the date of redemption. The sinking fund payments
provided for in the preceding sentence shall be cumulative. In case more than
the number of shares the Corporation is required to redeem on any redemption
date are surrendered for redemption, the Corporation may select the shares to be
redeemed by lot, pro rata, by agreement among the holders or in any equitable
manner determined by the Corporation, including by a combination of selection by
lot and agreement. In case fewer than the number of shares the Corporation is
required to redeem on any redemption date are surrendered for redemption, the
excess funds available in the sinking fund shall cumulate and the number of
shares equal to the difference between the number of shares surrendered for
redemption and the maximum number of shares which could have been surrendered
for redemption may be surrendered for redemption on the following October 1.
Notwithstanding the net asset value per share of the Series A Stock at the time
of redemption, all redemptions whether made under Section 5 or 7 shall be at
$8.00 per share (plus accrued and unpaid dividends).
Notice of redemption for the redemption of such shares shall be as
set forth in Section 5.
If the Board of Directors should for any reason fail to appropriate
sinking fund payments for number of shares the Corporation is required to redeem
in each year starting in 1992, then the Board of Directors may not thereafter
(i) pay any dividends or make any other distribution (excluding dividends paid
in shares of, or options, warrants or rights to subscribe for or purchase shares
of, Common Stock of the Corporation) on the Common Stock or Junior Stock or (ii)
purchase, redeem or otherwise acquire any shares of Junior Stock. No redemption,
whether made under Section 5 or 7, may be made unless and to the extent funds
are legally therefor pursuant to the Maryland General Corporation Law.
7.02. SATISFACTION OF SINKING FUND REDEMPTIONS. The Company may
apply as a credit any shares of Series A Stock redeemed at the election of the
Company (other than pursuant to this Section 7) or converted at the option of
the holder, in each case in satisfaction of all or any part of any Sinking Fund
redemption required to be made pursuant to this Section 7 and the amount of the
Sinking Fund redemption shall be reduced accordingly. The amount of any Sinking
Fund redemption for any year shall automatically be reduced by the shares of
Series A Stock called for redemption through operation of the Sinking Fund or
converted into Common Stock pursuant to Section 3 on or before the date fixed
for redemption in that year.
THIRD: The reclassification of authorized but un-issued shares as set forth
in these Articles Supplementary has effected no change in the authorized capital
of the Corporation consisting of Ten Million (10,000,000) shares of Common Stock
with a par value of One Cent ($.01) each, One Million Five Hundred Thousand
(1,500,000) shares of Preferred Stock with a par value of $.01 each, amounting
in the aggregate to One Hundred Fifteen Thousand Dollars ($115,000).
IN WITNESS WHEREOF, IGENE Biotechnology, Inc. has caused these presents to
be signed in its name and on its behalf by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Asst. Secretary this 30th day of September, 1987, and the undersigned officers
acknowledge that these Articles Supplementary are the act of the Corporation,
that to the best of their knowledge, information and belief all matters and
facts set forth herein relating to the authorization and approval of these
Articles are true in all material respects, and that this statement is made
under the penalties of perjury.
ATTEST: IGENE BIOTECHNOLOGY, INC.
_____________________________ By: _________________________
Philip J. Gugliotti, Robert Austin Milch, President
Assistant Secretary
IGENE BIOTECHNOLOGY, INC.
ARTICLES SUPPLEMENTARY
IGENE BIOTECHNOLOGY, INC., a Maryland corporation having its principal
office in Columbia, Maryland, hereby certifies to the State Department of
Assessments and Taxation of Maryland that:
FIRST: Pursuant to Articles Supplementary filed September 30, 1987, One
Million Fifty Thousand (1,050,000) shares of Preferred Stock were classified as
8% Cumulative Convertible Preferred Stock, Series A.
SECOND: Pursuant to authority contained in the Charter the Board of
Directors has classified an additional Eighty-Two Thousand Five Hundred (82,500)
shares of the One Million Five Hundred Thousand (1,500,000) shares of authorized
but unissued shares of Preferred Stock into 8% Cumulative Convertible Preferred
Stock, Series A.
THIRD: The reclassification of authorized but unissued shares as set forth
in these Articles Supplementary has effected no change in the authorized capital
of the Corporation consisting of Ten Million (10,000,000) shares of Common Stock
with a par value of One Cent ($.01) each, One Million Five Hundred Thousand
(1,500,000) shares of Preferred Stock with a par value of $.01 each, amounting
in the aggregate to One Hundred Fifteen Thousand Dollars ($115,000).
IN WITNESS WHEREOF, IGENE BIOTECHNOLOGY, INC. has caused these presents to
be signed in its name and on its behalf by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary this 27th day of October, 1987, and the undersigned officers
acknowledge that these Articles Supplementary are the act of the Corporation,
that to the best of their knowledge, information and belief all matters and
facts set forth herein relating to the authorization and approval of these
Articles are true in all material respects, and that this statement is made
under the penalties of perjury.
ATTEST: IGENE BIOTECHNOLOGY, INC.
- ------------------------------- By: -------------------------
William T. Hall, Secretary Robert Austin Milch, President
IGENE BIOTECHNOLOGY, INC.
ARTICLES OF RESTATEMENT
IGENE Biotechnology, Inc., a Maryland corporation having its principal
office in Columbia, Maryland (hereinafter called the "Corporation"), hereby
certifies to the State Department of Assessments and Taxation of Maryland (the
"Department") that:
FIRST: The Corporation desires to restate its charter as
currently in effect.
SECOND: The provisions of the Corporation's charter
currently in effect are as follows:
"FIRST: I, Shale D. Stiller, whose post office address is
1300 Mercantile Bank & Trust Building, 2 Hopkins Plaza, Baltimore,
Maryland 21201, being at least eighteen (18) years of age, hereby form
a corporation under and by virtue of the General Laws of the State of
Maryland.
SECOND: The name of the Corporation (hereinafter called the
Corporation) is IGENE BIOTECHNOLOGY, INC.
THIRD: The purposes for which the Corporation is formed are:
(a) To engage in any and all activities relating to mutated
and genetically engineered microorganisms.
(b) To carry on the aforesaid business and any related or
unrelated business and activity in the State of Maryland, in any
state, territory, district or dependency of the United States, or in
any foreign country.
(c) To do anything permitted in Section 2-103 of the
Corporations and Associations Article of the Annotated Code of
Maryland, as amended from time to time.
FOURTH: The post office address of the principal office of
the Corporation in the State is 9110 Red Branch Road, Columbia,
Maryland 21045. The name and post office address of the resident agent
of the Corporation in this State is Dr. Robert Austin Milch, 9110 Red
Branch Road, Columbia, Maryland 21045. Said agent is an individual
actually residing in this State.
FIFTH: The total number of shares of stock of all classes
which the Corporation has authority to issue is Eleven Million Five
Hundred Thousand (11,500,000) shares divided into Ten Million
(10,000,000) shares par value of One Cent ($.01) per share of Common
Stock, having an aggregate par value of One Hundred Thousand Dollars
($100,000.00) and One Million Five Hundred Thousand (1,500,000) shares
of the par value of One Cent ($.01) per share of Preferred Stock
having an aggregate par value of Fifteen Thousand Dollars
($15,000,000). The aggregate par value of all shares of stock is One
Hundred Fifteen Thousand Dollars ($115,000.00).
SIXTH: The number of directors of the Corporation shall be
no less than five (5) and no greater than nine (9), which numbers may
be increased or decreased pursuant to the By-Laws of the Corporation.
In the event that there are less than three (3) stockholders, the
number of directors may be less than three (3) but no less than the
number of stockholders.
SEVENTH: No Stockholders of the Corporation shall have any
preferential or pre-emptive right to acquire additional shares of
stock of the Corporation except to the extent that, and on such terms
as, the Board of Directors from time to time may determine.
EIGHT: The Corporation shall have the power to indemnify, by
express provision in its By-Laws, by Agreement or by majority vote of
either its stockholders or disinterested directors, any one or more of
the following classes of individuals: (1) present or former directors
and/or officers of the Corporation, (2) present or former agents
and/or employees of the Corporation, (3) present or former
administrators, trustees or other fiduciaries under pension, profit
sharing, deferred compensation, or any other employee benefit plan
maintained by the Corporation and (4) persons serving or who have
served at the request of the Corporation in any of the aforementioned
capacities for any other corporation, partnership, joint venture,
trust, or other enterprises. Provided, however, that the Corporation
shall not have the power to indemnify any person if such
indemnification would be contrary to Section 2-418 of the Corporations
and Associations Article of the Annotated Code of Maryland, or any
statute, rule or regulation of similar import.
NINTH: In carrying on its business, or for the purpose of
attaining or furthering any of its objects, the Corporation shall have
all of the rights, powers and privileges granted to corporations by
the laws of the State of Maryland, and the power to do any and all
acts and things which a natural person or partnership could do and
which may now or hereafter be authorized by law, either alone or in
partnership or conjunction with others. In furtherance and not in
limitation of the powers conferred by statute, the powers of the
corporation and of the Directors and Stockholders shall include the
following:
(a) Any Director individually, or any firm of which any
Director may be a member, or any corporation or association of which
any Director may be an officer or director or in which any Director
may be interested as the holder of any amount of its capital stock or
otherwise, may be a party to, or may be pecuniarily or otherwise
interested in, any contract or transaction of the Corporation, and, in
the absence of fraud, no contract or other transaction shall be
thereby affected or invalidated, provided that in case a Director, or
firm of which a Director is a member, or a corporation or association
of which a Director is an officer or director in which a Director is
interested as the holder of any amount of its capital stock or
otherwise, is so interested, such fact shall be disclosed or shall
have been known to the Board of Directors or a majority thereof. Any
Director of the Corporation who is also a Director or officer of or
interested in such other corporation or association, or who, or the
firm of which he is a member, is so interested, may be counted in
determining the existence of a quorum at any meeting of the Board of
Directors of the Corporation which shall authorize any such contract
or transaction, with like force and effect as if he were not such
director or officer of such other corporation or association or were
not so interested or were not a member of a firm so interested.
(b) The Corporation reserves the right, from time to time,
to make any amendment of its Charter, now or hereafter authorized by
law, including any amendment which alters the contract rights, as
expressly set forth in its Charter, of any outstanding stock.
(c) Except as otherwise provided in these Articles of
Incorporation, the Charter or the By-Laws of the Corporation, as from
time to time amended, the business of the Corporation shall be managed
by its Board of Directors, which shall have and may exercise all the
powers of the corporation except such as are by law, these Articles of
Incorporation, the Charter or the By-Laws, conferred upon or reserved
to the Stockholders. Additionally, the Board of Directors of the
Corporation is hereby specifically authorized and empowered from time
to time in its discretion:
(1) To authorize the issuance from time to time of
shares of its stock of any class, whether now or hereafter authorized,
or securities convertible into shares of its stock, of any class of
classes, whether now or hereafter authorized, for such considerations
as said Board of Directors may deem advisable, subject to such
restrictions or limitations, if any as may be set forth in the By-Laws
of the Corporation;
(2) By articles supplementary to these Articles of
Incorporation, to classify or reclassify any unissued shares by fixing
or altering in any one or more aspects, from time to time before
issuance of such shares, the preferences, rights, voting powers,
restrictions and qualifications of, the dividends on, the time and
prices of redemption of, and the conversion rights of, such shares."
THIRD: The provisions set forth in these Articles of
Restatement are all the provisions of the charter currently in effect.
FOURTH: The restatement of the Corporation's charter was
approved by a majority of the entire board of directors of the Corporation.
These Articles of Restatement supersede all prior charter documents.
FIFTH: The Corporation currently has eight (8) Directors.
The names of the Directors of the Corporation currently in office are as
follows:
Robert Austin Milch
William T. Hall
Thomas L. Kempner
John C. Archibald
Morton A. Cohen
Carl L. Kempner
Sidney R. Kanfel
Kenneth D. Weiser
SIXTH: The Corporation's charter is not amended by these
Articles of Restatement.
SEVENTH: The current address of the Corporation and the name
and address of the Corporation's current resident agent are as stated in the
Restatement contained in Article Second above.
THE UNDERSIGNED, President of IGENE Biotechnology, Inc., who
executed on behalf of the corporation the foregoing Articles of Restatement, of
which this certificate is made a part, hereby acknowledges, in the name and on
behalf of the corporation, the foregoing Articles of Restatement to be the
corporate act of the corporation and further certifies that, to the best of his
knowledge, information and belief, the matters and facts set forth therein with
respect to the authorization and approval of the Articles are true in all
material respects, under the penalties of perjury.
IN WITNESS WHEREOF IGENE Biotechnology, Inc., has caused
these presents to be signed in its name and on its behalf by its President and
its corporate seal to be hereunto affixed and attested by its Secretary, on
November 4, 1986.
[SEAL] IGENE BIOTECHNOLOGY, INC.
By: _________________________
Robert Austin Milch
President
Attest:
- ------------------------------
William T. Hall
Secretary
IGENE BIOTECHNOLOGY, INC.
ARTICLES SUPPLEMENTARY
IGENE Biotechnology, Inc., a Maryland corporation having its principal
office in Columbia, Maryland, hereby certifies to the State Department of
Assessments and Taxation of Maryland (the "SDAT") that:
FIRST: The charter of the Corporation gives the Corporation authority
to issue One Million Five Hundred Thousand (1,500,000) shares of Preferred
Stock. By Articles Supplementary filed with the SDAT on December 29, 1983, the
Board of Directors classified shares of Preferred Stock as Series A Preferred
Stock with the preferences, conversion or other rights, voting powers,
restrictions, limitation as to dividends and qualified actions as set forth in
such Articles Supplementary.
SECOND: Pursuant to authority contained in the Charter, all of the
authorized but unissued shares of Preferred Stock previously classified as
Series A Preferred Stock have been duly reclassified by the Board of Directors
of the Corporation as authorized but unissued shares of Preferred Stock of the
Corporation.
THIRD: The description of the Preferred Stock which the Corporation
has authority to issue, as contained in the Articles of Amendment to the
Articles of Incorporation filed by the Corporation on March 7, 1986, is "One
Million Five Hundred Thousand (1,500,000) shares of the par value of One Cent
($.01) per share of Preferred Stock having an aggregate par value of Fifteen
Thousand Dollars ($15,000.00)." The preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends and qualifications of
the Preferred Stock shall be set by the Board of Directors prior to issuance of
shares of such stock pursuant to authority contained in the Charter.
FOURTH: The reclassification of stock made by these Articles
Supplementary was approved by the Board of Directors of the Corporation by a
meeting held on September 12, 1986. No stockholder approval of these Articles
Supplementary is required and these Articles Supplementary have therefore been
approved and authorized in the manner and by the vote required by law and by the
Corporation's charter.
IN WITNESS WHEREOF, IGENE Biotechnology, Inc. has caused these
presents to be signed in its name and on its behalf by its President or one of
its Vice Presidents and its corporate seal to be hereunto affixed and attested
by its Secretary this 4th day of November, 1986, and the undersigned officers
acknowledge that these Articles Supplementary are the act of the Corporation,
that to the best of their knowledge, information and belief all matters and
facts set forth herein relating to the authorization and approval of these
Articles are true in all material respects, and that this statement is made
under the penalties of perjury.
ATTEST: IGENE Biotechnology, Inc.
- ----------------------------- By:---------------------------
William T. Hall, Secretary Robert Austin Milch,
President
ARTICLES OF MERGER
Genetic Research Corporation, a Maryland corporation (herein sometimes
called "Merging Company"), and IGI Biotechnology, Inc., a Maryland corporation
(herein sometimes called "Survivor"), hereby certify to the State Department of
Assessments and Taxation of Maryland that:
FIRST: Merging Company and Survivor have agreed that Merging Company
shall be merged into Survivor.
SECOND: Survivor shall survive the merger under the laws of the state
of Maryland and shall continue under the name:
IGI Biotechnology, Inc.
THIRD: The names of the corporations parties to the merger are Genetic
Research Corporation and IGI Biotechnology, Inc., both corporations organized
and existing under the laws of the State Maryland.
FOURTH: The Charter and Bylaws of Survivor in effect on the date of
this merger shall continue in full force and effect as the Charter and Bylaws of
the corporation surviving the merger.
FIFTH: The principal office of the Merging Company is located in
Howard County, Maryland. The principal office of the Survivor is located in
Howard County, Maryland. Neither the Merging Company nor the Survivor own any
property in Maryland, the title to which could be affected by the recording of
an instrument among the Land Records of any county in Maryland or the City of
Baltimore, Maryland.
SIXTH: The total number of shares of stock of all classes which
Merging Company has authority to issue is Five Thousand (5,000) shares of
capital stock without par value. The total number of shares of stock of all
classes which Survivor has authority to issue is Twenty-Two Million (22,000,000)
shares, of which Twenty-One Million (21,000,000) shares are New Common Stock
having an aggregate par value of Two Hundred Ten Thousand Dollars ($210,000.00)
and of which One Million (1,000,000) shares are Series A Preferred Stock having
an aggregate par value of Ten Thousand Dollars ($10,000.00). The aggregate par
value of all shares of all classes of authorized stock of the Survivor is Two
Hundred Twenty Thousand Dollars ($220,000.00). These Articles of Merger make no
change in the capitalization of the Survivor or any other amendment to its
Charter.
SEVENTH: Since the Merging Company is a wholly-owned subsidiary of the
Survivor, all issued shares of the Merging Company will be cancelled
automatically as a result of this merger, and no new shares of the Survivor or
any other consideration will be issued in consideration of the cancellation of
the stock of the Merging Company.
EIGHTH: Upon the effective date of the merger, the separate existence
of the Merging Company shall cease and the Survivor shall own and possess all of
the property, rights, privileges and franchises of whatever nature and
description of the Merging Company without further act or deed. Notwithstanding
the foregoing, confirmatory deeds or other like instruments, when deemed
desirable to evidence such transfer, vesting or devolution of any property,
rights, privileges or franchises, may, at any time or from time to time, be made
and delivered in the name of the Merging Company by the last acting officers
thereof, or by the corresponding officers of the Survivor.
Upon the effective date of the merger, the Survivor shall be liable
for all the debts and obligations of the Merging Company and any claim existing
or action or proceeding pending by or against it may be prosecuted to judgment
or decree as if the merger had not taken place. The rights of creditors of the
Merging Company shall not be impaired by this merger.
NINTH: The Board of Directors of Merging Company, by a unanimous
consent dated October 17, 1984, adopted resolutions approving the merger. The
Board of Directors of Survivor, at a meeting held on September 21, 1984, adopted
resolutions approving the merger. The terms and conditions of the merger
described in these Articles were therefore duly approved by the Directors of
Merging Company and of Survivor as required by the laws of Maryland and by the
Charters of Merging Company and Survivor and, since the Merging Company is a
wholly owned subsidiary of Survivor, no approval by the stockholders of either
company is required.
TENTH: This merger shall become effective in accordance with the laws
of the State of Maryland when these Articles have been accepted for record by
the Department of Assessments and Taxation of Maryland.
IN WITNESS WHEREOF, the corporations party to these Articles of Merger
have caused these Articles to be signed in their respective corporate names and
on their behalfs by their respective Presidents and their corporate seals to be
hereunto affixed and attested by their respective Secretaries, and each officer
signing this document acknowledges it to be the corporate act of his respective
corporation and that, to the best of his knowledge, information and belief, all
matters and facts set forth herein with respect to the authorization and
approval of the foregoing Articles are true in all material respects and that
this verification is made under the penalties of perjury.
ATTEST: IGI BIOTECHNOLOGY, INC.
__________________________ By: _______________________
Carl L. Kempner, Robert Austin Milch,
Secretary President
GENETIC RESEARCH CORPORATION
__________________________ By: _______________________
Thomas L. Kempner, Robert Austin Milch,
Secretary President
IGI Biotechnology, Inc.
ARTICLES SUPPLEMENTARY
IGI Biotechnology, Inc. (the "Corporation"), a Maryland corporation
having its principal office in Howard County, Maryland, hereby certifies to the
State Department of Assessments and Taxation of Maryland that:
FIRST: Pursuant to authority contained in the Corporation's Charter,
the Board of Directors of the Corporation by resolution has classified all One
Million (1,000,000) authorized but unissued shares of the Corporation's
Preferred Stock as authorized but unissued shares of Series A Preferred Stock,
$.01 par value per share (the "Series A Preferred Stock").
SECOND: A description of the Series A Preferred Stock, including the
preferences, conversion and other rights, voting powers, restrictions,
limitation as to dividends, qualifications, and terms and conditions of
redemption, as approved by the Board of Directors is as follows:
A. Dividends.
The holders of Series A Preferred Stock shall be entitled to receive,
as and when declared by the Board of Directors and out of funds of the
Corporation legally available for the payment of dividends, noncumulative
dividends in cash at the rate of six percent of $4.00 (the "Issue Price") per
share per annum, and no more, payable annually with respect to each fiscal year
no later than 120 days after the end of such fiscal year; provided that the
aggregate amount of such dividends payable with respect to any fiscal year shall
not exceed the consolidated net income of the Corporation and its subsidiaries
(if any) for such fiscal year. As long as any shares of Series A Preferred Stock
are outstanding the Corporation shall not declare or pay any dividends (other
than dividends payable solely in shares of New Common Stock) on shares of New
Common Stock or any other class of stock ranking junior to the Series A
Preferred Shares in respect of dividends or rights upon liquidation, or make,
directly or indirectly, any other distribution of any sort in respect of shares
of such junior stock or any payment on account of the redemption, purchase or
other acquisition of shares of such junior stock unless, at the date of such
distribution or other payment, all dividends on the then outstanding shares of
Series A Preferred Stock for the preceding fiscal year have been declared at the
rate set forth above and paid or set apart for payment in full and all sinking
fund redemptions of shares of Series A Preferred Stock then or theretofore
required hereunder have been made. The dividend per share for the fiscal year
ended December 31, 1983 shall be in an amount which bears the same proportion to
the Issue Price as the number of days in the period from the initial issuance of
shares of Series A Preferred Stock to December 31, 1983 bears to 360.
B. Voting Rights.
Except as otherwise expressly provided herein or as required by law,
the holder of each share of Series A Preferred Stock shall have the right to one
vote for each share of New Common Stock into which such Series A Preferred Stock
could then be converted (with any fractional share determined on an aggregate
conversion basis being rounded to the nearest whole share), and with respect to
such vote, such holder shall have full voting rights and powers equal to the
voting rights and powers of the holders of New Common Stock, and shall be
entitled, notwithstanding any provision hereof, to notice of any stockholders'
meeting in accordance with the By-laws of the Corporation, and shall be entitled
to vote, together with holders of New Common Stock, with respect to any question
upon which holders of New Common Stock have the right to vote.
Notwithstanding the foregoing, unless prior to or simultaneously with
the consummation of any transaction referred to below all of the outstanding
shares of Series A Preferred Stock are to be redeemed or the Corporation has
provided monies for such redemption in accordance with Section E hereof, the
consent of the holders of at least two-thirds of the outstanding shares of the
Series A Preferred Stock, given in person or by proxy, either in writing or at a
meeting called for the purpose, shall be necessary to effectuate or validate the
action of the Corporation in effecting, authorizing or permitting any one or
more of the following:
1. The consolidation or merger of the Corporation with any other
corporation or the conveyance, transfer or lease of the properties and assets of
the Corporation as, or substantially as, an entirety to any other corporation or
entity; or
2. The authorization, creation or issue of any class of stock of the
Corporation ranking equal or prior to the Series A Preferred Stock in respect of
dividends or rights upon liquidation, or the authorization, creation or issue of
any obligation or security convertible into or exchangeable for shares of stock
of any class ranking equal or prior to the Series A Preferred Stock in respect
of dividends or rights upon liquidation, or the reclassification of any stock of
the Corporation into shares of Series A Preferred Stock or stock ranking equal
or prior to Series A Preferred Stock in respect of dividends or rights upon
liquidation; or
3. The issuance and sale by the Corporation to the public by means of
an initial underwritten public offering of shares of New Common Stock for a
price per share of New Common Stock to the public of nine dollars ($9.00) or
less; or
4. The issue of any shares of New Common Stock for a price per share
of New Common Stock of four dollars ($4.00) or less, or the issue of any stock,
obligation or security convertible into or exchangeable for shares of New Common
Stock the price per share of New Common Stock issuable upon such conversion or
exchange (determined by dividing (i) the total consideration received or
receivable by the Corporation for the issue or sale of such stock, obligation or
security, plus the minimum aggregate amount of additional consideration, if any,
payable to the Corporation upon the conversion or exchange thereof by (ii) the
total maximum number of shares of New Common Stock issuable upon the conversion
or exchange of all such stock, obligation or security) is four dollars ($4.00)
or less per share of New Common Stock; or
5. The creation, incurrence, assumption or sufferance by the
Corporation of indebtedness for borrowed money or any other indebtedness or
liability evidenced by notes, bonds, debentures or similar obligations, other
than any indebtedness or liability outstanding on the date hereof, exceeding the
greater of (i) one million dollars ($1,000,000), or (ii) either (x) three times
the Corporation's net worth (as defined below) or (y) ten million dollars
($10,000,000), whichever is less; or
6. The granting by the Corporation to any persons of stock options
other than options to purchase up to 450,000 shares of the Corporation's New
Common Stock, which options are authorized under the Corporation's existing
Non-Qualified Stock Option Plan and Qualified Incentive Stock Option Plan, both
of which were approved by the Board of Directors on December 3, 1982; or
7. The repeal of these Articles Supplementary or the Articles of
Incorporation of the Corporation or any amendment or alteration thereof which
would affect adversely the preferences, rights and qualifications, and the
limitations or restrictions thereof, of the shares of Series A Preferred Stock
or of the holders, as such, thereof; or the repeal of any provision of the
By-laws of the Corporation relating to the quorum or notice for meetings of the
holders of Series A Preferred Stock, or any amendment or alteration thereof
which would adversely affect the aforesaid preferences or rights of the shares
of Series A Preferred Stock or the holders, as such, thereof.
The Corporation's net worth shall mean the sum of the following
determined in accordance with generally accepted accounting principles then
employed, applied on a consistent basis:
(a) the par or stated value of all outstanding capital stock (less
cost of treasury shares); PLUS
(b) the amount of capital surplus and earned surplus (or, in the case
of a capital surplus or earned surplus deficit, MINUS the amount of such
deficit).
C. Liquidation Preference.
In the event of any liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary, the holders of the Series A
Preferred Stock shall be entitled to receive, prior and in preference to any
further distribution of any of the assets or funds of the Corporation to the
holders of New Common Stock, an amount equal to $4.00 per share of Series A
Preferred Stock. If the assets and funds of the Corporation available for
distribution to stockholders are insufficient to permit payment of the full
aforesaid preferential amount, each issued and outstanding share of Series A
Preferred Stock shall entitle the holder to an equal proportion of the assets
and funds to be distributed. If the assets and funds of the Corporation
available for distribution to stockholders exceeds the preferential amount
payable to holders of Series A Preferred Stock above described, the remaining
assets and funds of the Corporation available for distribution to stockholders
shall be distributed pro rata to holders of the New Common Stock.
Written notice of any such liquidation, dissolution or winding-up,
stating a payment date and the place where such payment shall be made or other
procedure for the making of such payment shall be given by first class mail,
postage prepaid, to each holder of record of Series A Preferred Stock at such
holder's address as shown on the records of the Corporation.
D. Conversion Rights.
The holders of the Series A Preferred Stock shall have conversion
rights as follows:
(a) RIGHT TO CONVERT. Subject to subsection (d) of this Section D,
each share of Series A Preferred Stock shall be convertible, at the option of
the holder thereof, at any time after the date of issuance of such share, at the
office of the Corporation, into one fully paid and nonassessable share of New
Common Stock (the "Stated Conversion Rate"). The Stated Conversion Rate for the
Series A Preferred Stock shall be subject to adjustment as set forth in
subsection (d).
(b) AUTOMATIC CONVERSION. Each share of Series A Preferred Stock shall
automatically be converted into one fully paid and nonassessable share of New
Common Stock, subject to adjustment of the Stated Conversion Rate as described
in subsection (d), effective as of the closing of a bona fide underwritten
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or other federal securities act in lieu
thereof, covering the offer and sale of equity securities of the Corporation for
the account of the Corporation to the public. Each holder of record of shares of
Series A Preferred Stock will be notified by written notice of the effective
conversion and the procedures for obtaining issuance of new stock certificates
representing New Common Stock. Such notice shall be sent by first class mail,
postage prepaid, to each holder of record of Series A Preferred Stock at such
holder's address as shown on the records of the Corporation. The Corporation
shall not issue any certificates or shares of New Common Stock to a holder of
Series A Preferred Stock which has been automatically converted into New Common
Stock until the certificate representing the Series A Preferred Stock has been
surrendered or an acceptable affidavit and indemnity with respect to the lost
stock certificate shall have been provided to the Corporation, but the holder of
the Series A Preferred Stock shall, after such conversion, be treated for all
other purposes as the holder of New Common Stock.
(c) MECHANICS OF CONVERSION. Before any holder of Series A Preferred
Stock shall be entitled to convert the same into shares of New Common Stock, he
shall surrender the certificate or certificates therefor, duly endorsed, at the
office of the Corporation, and shall give written notice by mail, postage
prepaid, to the Corporation at its principal corporate office, of the election
(unless such conversion is automatic pursuant to subsection (b) above) to
convert the same and shall state therein the name or names in which the
certificate or certificates for shares of New Common Stock are to be issued. The
Corporation shall, as soon as practicable thereafter, issue and deliver at such
office to such holder of Series A Preferred Stock, or to the nominee or nominees
of such holder, a certificate or certificates for the number of shares of New
Common Stock to which such holder shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of such surrender of the shares of Series A Preferred Stock
to be converted, and the person or persons entitled to receive the shares of New
Common Stock issuable upon such conversion shall be treated for all purposes as
the record holder or holders of such shares of New Common Stock as of such date.
If the conversion is in connection with an underwritten public offering of
securities registered pursuant to the Securities Act of 1933, as provided in
subsection (b), the conversion may, at the option of any holder tendering Series
A Preferred Stock for conversion, be conditioned upon the closing with the
underwriter of the sale of securities pursuant to such offering, in which event
the person(s) entitled to receive the New Common Stock issuable upon such
conversion of the Series A Preferred Stock shall not be deemed to have converted
such Series A Preferred Stock until immediately prior to the closing of such
sale of securities.
(d) ADJUSTMENT OF STATED CONVERSION RATE. The Stated Conversion Rate
shall be subject to adjustment from time to time as set forth below:
(1) the Stated Conversion Rate shall be adjusted so as to equal at all
times the quotient (rounded to the nearest hundredth share) of $4.00 divided by
the Current Conversion Price (as defined below). The Current Conversion Price
shall be deemed initially to be $4.00. In case at any time or from time to time
(except as provided in subparagraph (6) of this subsection (d)) the Corporation
shall issue or sell any shares of New Common Stock for a consideration per share
less than the Current Conversion Price in effect immediately prior to such issue
or sale, then forthwith upon such issue or sale the Current Conversion Price in
effect immediately prior to such issue or sale shall be reduced to a price
(calculated to the nearest cent) determined by dividing (i) an amount equal to
the sum of (x) the number of shares of New Common Stock outstanding immediately
prior to such issue or sale multiplied by the then existing Current Conversion
Price, and (y) the consideration, if any, received by the Corporation upon such
issue or sale, by (ii) the total number of shares of New Common Stock
outstanding immediately after such issue or sale. No adjustment of the Current
Conversion Price, however, shall be made in an amount less than five cents
($.05), but any lesser adjustment shall be carried forward and shall be made at
the time and together with the next subsequent adjustment which together with
any adjustments so carried forward shall amount to five cents ($.05) or more.
(2) For the purposes of subparagraph (1) above, the following (i) to
(vi), inclusive, shall also be applicable:
(i) In case at any time the Corporation shall grant any rights to
subscribe for, or any rights or options to purchase, New Common Stock or any
stock or other securities convertible into or exchangeable for New Common Stock
(such convertible or exchangeable stock or securities being herein called
"Convertible Securities"), whether or not such rights or options or the right to
convert or exchange any such Convertible Securities are immediately exercisable,
and the price per share for which New Common Stock is issuable upon the exercise
of such rights or options or upon conversion or exchange of such Convertible
Securities (determined by dividing (i) the total amount, if any, received or
receivable by the Corporation as consideration for the granting of such rights
or options, plus the minimum aggregate amount of additional consideration
payable to the Corporation upon the exercise of such rights or options, plus, in
the case of any such rights or options which relate to such Convertible
Securities, the minimum aggregate amount of additional consideration, if any,
payable upon the issue or sale of such Convertible Securities and upon the
conversion or exchange thereof, by (ii) the total maximum number of shares of
New Common Stock issuable upon the exercise of such rights or options or upon
the conversion or exchange of all such Convertible Securities issuable upon the
exercise of such rights or options) shall be less than the Current Conversion
Price in effect immediately prior to the time of the granting of such rights or
options, then the total maximum number of shares of New Common Stock issuable
upon the exercise of such rights or options or upon conversion or exchange of
the total maximum amount of such Convertible Securities issuable upon the
exercise of such rights or options shall (as of the date of granting of such
rights or options) be deemed to be outstanding and to have been issued for such
price per share. Except as provided in subparagraph (5) of this Section, no
further adjustments of the Current Conversion Price shall be made upon the
actual issue of such Common Stock or of such Convertible Securities upon
exercise of such rights or options or upon the actual issue of such New Common
Stock upon conversion or exchange of such Convertible Securities.
(ii) In case at any time the Corporation shall issue or sell any
Convertible Securities, whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the price per share for which New
Common Stock is issuable upon such conversion or exchange (determined by
dividing (x) the total amount received or receivable by the Corporation as
consideration for the issue or sale of such Convertible Securities, plus the
minimum aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange thereof, by (y) the total maximum
number of shares of New Common Stock issuable upon the conversion or exchange of
all such Convertible Securities) shall be less than the Current Conversion Price
in effect immediately prior to the time of such issue or sale, then the total
maximum number of shares of New Common Stock issuable upon conversion or
exchange of all such Convertible Securities shall (as of the date of the issue
or sale of such Convertible Securities) be deemed to be outstanding and to have
been issued for such price per share, provided that (x) except as provided in
subparagraph (5) of this subsection (d), no further adjustments of the Current
Conversion Price shall be made upon the actual issue of such Convertible
Securities, and (y) if any such issue or sale of such Convertible Securities is
made upon exercise of any rights to subscribe for or to purchase or any option
to purchase any such Convertible Securities for which adjustments of the Current
Conversion Price have been or are to be made pursuant to other provisions of
subparagraph (2) of this subsection (d), no further adjustment of the Current
Conversion Price shall be made by reason of such issue or sale.
(iii) In case at any time the Corporation shall declare a
dividend or make any other distribution upon any stock of the Corporation
payable in New Common Stock or Convertible Securities, any New Common Stock or
Convertible Securities, as the case may be, issuable in payment of such dividend
or distribution shall be deemed to have been issued or sold without
consideration.
(iv) In case at any time any shares of New Common Stock or
Convertible Securities or any rights or options to purchase any such New Common
Stock or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Corporation therefor, without deduction therefrom of any expenses incurred or
any underwriting commission or concessions or discounts paid or allowed by the
Corporation in connection therewith. In case any shares of New Common Stock or
Convertible Securities or any rights or options to purchase any such New Common
Stock or Convertible Securities shall be issued or sold for a consideration
other than cash, the amount of the consideration other than cash received by the
Corporation shall be deemed to be the fair value of such consideration as
reasonably determined by the Board of Directors of the Company, without
deduction therefrom of any expenses incurred or any underwriting commissions or
concessions or discounts paid or allowed by the Corporation in connection
therewith. In case any shares of New Common Stock or Convertible Securities or
rights or options to purchase any such New Common Stock or Convertible
Securities shall be issued in connection with any merger of another corporation
into the Corporation, the amount of consideration therefor shall be deemed to be
the fair value of the assets of such merged corporation as determined by the
Board of Directors of the Corporation after deducting therefrom all cash and
other consideration (if any) paid by the Corporation in connection with such
merger.
(v) In case at any time the Corporation shall take a record of
the holders of New Common Stock for the purpose of entitling them (x) to receive
a dividend or other distribution payable in New Common Stock or in Convertible
Securities, or (y) to subscribe for or purchase New Common Stock or Convertible
Securities, then such record date shall be deemed to be the date of the issue or
sale of the shares of New Common Stock deemed to have been issued or sold upon
the declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase, as the case may
be.
(vi) The number of shares of New Common Stock outstanding at any
given time shall not include shares owned or held by or for the account of the
Corporation or any subsidiary, and the disposition of any such shares shall be
considered an issue or sale of New Common Stock for the purposes of subparagraph
(1) above.
(3) In case the Corporation shall distribute to all holders of
its Common Stock evidences of its indebtedness or assets (excluding any cash
dividend paid out of earned surplus), then in each such case the Current
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Current Conversion Price in effect immediately
prior to the date of such distribution by a fraction whose numerator shall be
such Current Conversion Price less the then fair market value (as reasonably
determined by the Board of Directors of the Corporation) of the portion of the
assets or evidences of indebtedness so distributed and whose denominator shall
be such Current Conversion Price. Such adjustment shall be made whenever any
such distribution is made and shall be retroactively effective as of immediately
after the record date for the determination of stockholders entitled to receive
such distribution.
(4) In case at any time the Corporation shall subdivide its
outstanding shares of New Common Stock into a greater number of shares, the
Current Conversion Price in effect immediately prior to such subdivision shall
be proportionately reduced and conversely, in case the outstanding shares of New
Common Stock of the Corporation shall be combined into a smaller number of
shares, the Current Conversion Price in effect immediately prior to such
combination shall be proportionately increased.
(5) If the purchase price provided for in any right or option
referred to in subparagraph (2)(a) of this subsection (d), or the rate at which
any Convertible Securities referred to in subparagraphs (2) (a) or (2) (b) of
this subsection (d) are convertible into or exchangeable for New Common Stock,
shall change or a different purchase price or rate shall become effective at any
time or from time to time (other than under or by reason of provisions designed
to protect against dilution), then, upon such change becoming effective, the
Current Conversion Price then in effect hereunder shall forthwith be increased
or decreased to such Current Conversion Price as would have obtained had the
adjustments made upon the granting or issuance of such rights or options or
Convertible Securities been made upon the basis of (a) the issuance of the
number of shares of New Common Stock theretofore actually delivered upon the
exercise of such options or rights or upon the conversion or exchange of such
options or rights or upon the conversion or exchange of such Convertible
Securities, and the total consideration received therefor, and (b) the granting
or issuance at the time of such change of any such options, rights, or
Convertible Securities then still outstanding for the consideration, if any,
received by the Corporation therefore and to be received on the basis of such
changed price. On the expiration of any right or option referred to in
subparagraph (2) (a) of this subsection (d), or of the termination of any right
to convert or exchange any Convertible Securities referred to in subparagraphs
(2) (a) or (2) (b) of this subsection (d), the Current Conversion Price shall
forthwith be readjusted to such amount as would have obtained had the adjustment
made upon the granting or issuance of such rights or options or Convertible
Securities been made upon the basis of the issuance or sale of only the number
of shares of New Common Stock actually issued upon the exercise of such options
or rights or upon the conversion or exchange of such Convertible Securities. If
the purchase price provided for in any such right or option, or the rate at
which any such Convertible Securities are convertible into or exchangeable for
New Common Stock, shall change at any time under or by reason of provisions with
respect thereto designed to protect against dilution, then in case of the
delivery of New Common Stock upon the exercise of any such right or option or
upon conversion or exchange of any such Convertible Security, the Current
Conversion Price then in effect hereunder shall forthwith be decreased to such
Current Conversion Price as would have obtained had the adjustments made upon
the issuance of such right or option or Convertible Security been made upon the
basis of the issuance of (and the total consideration received for) the shares
of New Common Stock delivered as aforesaid.
(6) The Corporation shall not be required to make any adjustment
of the Current Conversion Price in the case of
(a) the granting by the Corporation of stock options to its
employees, or
(b) the issuance of shares of New Common Stock pursuant to the
exercise of such options, whether granted prior to or subsequent to the date
hereof or pursuant to other employee benefit plans, or
(c) the issuance of such additional shares of New Common Stock as
may be issuable upon the exercise of such options or pursuant to such options or
pursuant to such plans as a result of adjustment in the number of shares covered
by such options or plans for stock dividends, stock splits or other changes in
the capitalization of the Corporation, or
(d) the issuance by the Corporation, pursuant to the Purchase
Agreement dated as of December 27, 1983 by and between the Corporation and the
investors listed on Schedule A thereto, of Warrants (as defined in such Purchase
Agreement), and the issuance of shares of New Common Stock pursuant to the terms
thereof.
(7) If any capital reorganization or reclassification of the
capital stock of the Corporation, or consolidation or merger of the Corporation
with another corporation, or the sale of all or substantially all of its assets
to another corporation, shall be effected in such a way that holders of New
Common Stock shall be entitled to receive stock, securities or assets with
respect to or in exchange for New Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, the Corporation
or such successor or purchasing corporation, as the case may be, shall execute
an agreement providing that the holder of each share of Series A Preferred Stock
shall have the right thereafter to convert such share of Series A Preferred
Stock into the kind and amount of stock, securities or assets receivable upon
such reorganization, reclassification, consolidation, merger or sale by a holder
of the number of shares of New Common Stock into which each share of Series A
Preferred Stock might have been converted immediately prior to such
reorganization, reclassification, consolidation, merger or sale, subject to
adjustments which shall be as nearly equivalent as may practicable to the
adjustments provided for in this subsection (d).
(8) If any event occurs as to which, in the opinion of the Board
of Directors of the Corporation, the provisions of this subsection (d) are not
strictly applicable or if strictly applicable would not fairly protect the
rights of the holders of Series A Preferred Stock in accordance with the
essential intent and principles of such provisions, then the Board of Directors
shall make an adjustment in the application of such provision, in accordance
with such essential intent and principles, so as to protect such rights as
aforesaid, but in no event shall any adjustment have the effect of increasing
the Current Conversion Price as otherwise determined pursuant to any of the
provisions of this subsection (d).
The adjustment of the Stated Conversion Rate hereinabove
described is solely applicable to conversion of Series A Preferred Stock to New
Common Stock and shall not affect any voting dividend, or liquidation rights or
any other rights, preferences, powers, restrictions and limitations of or
relating to the Series A Preferred Stock, and, until conversion, except as
stated herein, each share of Series A Preferred Stock shall have the same
rights, preferences, powers, restrictions and limitations.
(e) RESERVATION OF SHARES. The Corporation shall at all times
reserve and keep available out of its authorized New Common Stock and/or shares
of New Common Stock then owned or held by or for the account of the Corporation,
solely for the purpose of delivery upon conversion of Series A Preferred Stock
as herein provided, such number of shares of New Common Stock as shall then be
deliverable upon the conversion of all outstanding shares of Series A Preferred
Stock. All shares of New Common Stock which shall be so deliverable shall be
duly and validly issued and fully paid and nonassessable.
(f) NOTICE OF ADJUSTMENT. Whenever the Stated Conversion Rate is
adjusted, as herein provided, the Corporation shall promptly mail to the holders
of the Series A Preferred Stock a certificate of independent public accountants
(who may be the accountants regularly employed by the Corporation) setting forth
the Current Conversion Rate after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Such certificate shall be
conclusive evidence of the correctness of such adjustment.
E. Redemption.
(a) OPTIONAL REDEMPTION. The Series A Preferred Stock shall not
be redeemable at the option of the holders thereof. The Series A Preferred Stock
shall not be redeemable at the option of the Corporation without the prior
written consent of the holders of a majority of the Series A Preferred Stock at
the time outstanding.
(b) MANDATORY REDEMPTION. Commencing in the year 1990, and in
each of the next four years thereafter the Corporation shall on the earlier of
the 120th day of such year or the date on which the annual dividend for the
preceding year is declared, but no earlier than the first day of such year,
redeem, on a pro rata basis among holders, calculated as an equal percentage of
the number of shares then held by each such holder, a number of shares of Series
A Preferred Stock equal to 20% of the total number of such shares outstanding on
January 1, 1984. Such redemption (the "sinking fund redemption") shall be at a
price equal to $4.00 per share. Any shares of Series A Preferred Stock redeemed,
purchased or otherwise acquired by the Corporation, or converted into New Common
Stock, after December 31, 1983, shall be credited against the Corporation's
sinking fund redemption obligations both theretofore and thereafter accruing
hereunder. The sinking fund obligations of the Corporation shall be cumulative.
On or before the date of a sinking fund redemption the
Corporation shall deposit with a bank or trust company having a capital and
surplus of at least $50,000,000 doing business in the Borough of Manhattan, the
City of New York, State of New York (the "Paying Agent"), funds sufficient in
the amount to pay at the office of such Paying Agent, on the date of such
sinking fund redemption (the "Date of Redemption"), the applicable redemption
price. As of the Date of Redemption, provided (i) such deposit has been made,
and (ii) no default is made in the payment of the sinking fund redemption price,
all dividends on the shares of Series A Preferred Stock called for redemption
shall cease to accrue, and all rights of the holders thereof as shareholders of
the Corporation (except the right to receive from said Paying Agent upon
surrender of the certificates representing the redeemed shares the sinking fund
redemption price and accrued and unpaid dividends to Date of Redemption) shall
cease and determine, and such shares of Series A Preferred Stock shall be
redeemed.
Notice of any proposed redemption of shares of Series A Preferred
Stock shall state (i) the number of shares to be redeemed, (ii) the right of the
holder of such shares of Series A Preferred Stock to convert such shares into
New Common Stock in accordance with the provisions of Section D hereof until the
close of business on the tenth day prior to the Date of Redemption; (iii) the
name and address of the Paying Agent; and (iv) the intention of the Corporation
to deposit with such Paying Agent funds sufficient in amount to pay, on the Date
of Redemption, the applicable sinking fund redemption price together with
accrued and unpaid dividends to the Date of Redemption. Such notice shall be
given by the Corporation by first class mail, postage prepaid, addressed to the
holders of record of the shares of Series A Preferred Stock to be redeemed at
their respective addresses appearing on the books of the Corporation, not less
than 30 nor more than 60 days prior to the Date of Redemption.
Any funds deposited with the Paying Agent as provided above which
shall not be required for such redemption because of the exercise of any right
of conversion, or otherwise, subsequent to the date of such deposit, shall be
returned to the Corporation forthwith. The Corporation shall be entitled to
receive from such Paying Agent the interest, if any, allowed on any funds
deposited as aforesaid and the holders of any redeemed shares shall have no
claim to any such interest. Any funds so deposited with the Paying Agent which
shall remain unclaimed by the holders of the shares so called for redemption at
the end of three months after the redemption date shall be paid by the Paying
Agent to the Corporation and thereafter the holders of the shares called for
redemption shall look only to the Corporation for payment.
IN WITNESS WHEREOF, IGI Biotechnology, Inc. has caused these
presents to be signed in its name and or its behalf by its President and its
corporate seal to be hereunto affixed and attested by its Assistant Secretary
this 28th day of December 1983, and the undersigned officers acknowledge that
these Articles Supplementary are the act of the Corporation, that to the best of
their knowledge, information and belief all matters and facts set forth herein
relating to the authorization and approval of these Articles are true in all
material respects, and that this statement is made under the penalties of
perjury.
ATTEST: IGI BIOTECHNOLOGY, INC.
- ------------------------- By__________________________
Henry M. Dachowitz, Robert Austin Milch,
Assistant Secretary President
NOTICE OF CHANGE
OF PRINCIPAL OFFICE
OF
IGI BIOTECHNOLOGY, INC.
received for record August 31, 1983 at 9:35 A.M.
and recorded on Film No. 2603 Frame No. 3454
one of the charter records of the State Department of
Assessments and Taxation of Maryland.
To the clerk of the Circuit court of Howard County 63
AA No. 19085
Special Fee Paid $5.00
Recording Fee Paid $3.00
----
Total $8.00
70-75
Return to: Vanable, Baetjer and Howard
1800 Mercantile Bank & Trust Building
2 Hopkins Plaza
Baltimore, Maryland 81201
IGI BIOTECHNOLOGY, INC.
NOTICE OF CHANGE OF PRINCIPAL OFFICE ADDRESS
The undersigned officers of IGI Biotechnology, Inc. hereby
certify that a meeting of the Board of Directors of said Corporation duly and
regularly convened and held on June 17, 1982, at which a quorum was present and
acting throughout, the following resolution was duly and regularly adopted:
RESOLUTION OF DIRECTORS
RESOLVED, that the post office address of the principal
office of this Corporation in the State of Maryland by and it hereby
is changed to 9110 Red Branch Road, Columbia, Maryland 21045
The undersigned officers further certify that the foregoing
resolution has not been repealed or amended since its adoption.
IN WITNESS WHEREOF, the undersigned officers hereunto
subscribe their names this 24th day of August, 1983.
ATTEST IGI BIOTECHNOLOGY, INC.
- ----------------------- --------------------------
William T. Hall, Robert Austin Milch,
Assistant Secretary President
INDUSTRIAL GENETICS, INC.
ARTICLES OF AMENDMENT
INDUSTRIAL GENETICS, INC., a Maryland corporation having its
principal office in Howard County, Maryland (hereinafter called the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: The charter of the Corporation is hereby amended by
striking out Articles SECOND and FIFTH and inserting in lieu thereof the
following:
SECOND: The name of the Corporation (hereinafter
called the "Corporation") is
IGI BIOTECHNOLOGY, INC.
FIFTH: The total number of shares of capital stock which the
Corporation has authority to issue is Twenty-Two Million
(22,000,000) shares, of which Twenty-One Million (21,000,000)
shares shall be New Common Stock with a par value of one cent
($.01) per share and aggregate par value of Two Hundred Ten
Thousand Dollars ($210,000.00) and of which One Million
(1,000,000) shares shall be Preferred Stock with a par value
of One Cent ($.01), per share and an aggregate par value of
Ten Thousand Dollars ($10,000.00). The total aggregate par
value of all authorized stock is Two Hundred Twenty Thousand
Dollars ($220,000.00).
Unless otherwise provided in Articles Supplementary, all
shares of New Common and Preferred Stock shall have the same
rights, powers, privileges, restrictions and limitations.
SECOND: The board of directors of the Corporation, by written
consent to such action signed by all the members thereof and filed with the
minutes of proceedings of the board, adopted a resolution in which was set forth
the foregoing amendment to the charter declaring that the said amendment to the
charter was advisable and directing that it be submitted for action thereon at a
special meeting of the stockholders of the Corporation to be held on July 15,
1983.
THIRD: Notice setting forth the ______ amendment of the charter
(or a summary of the changes to be affected by said amendment of the charter)
and stating that a purpose of the meeting of the stockholders would be to take
action thereon, was given as required by law, to all stockholders of the
Corporation entitled to vote thereon. The amendment of the charter of the
Corporation as hereinabove set forth was approved by the stockholders of the
Corporation at said meeting by the affirmative vote of the holders of two-thirds
of the Corporation's stock outstanding and entitled to vote thereon.
FOURTH: The Amendment of the charter of the Corporation as
hereinabove set forth has been duly advised by the board of directors and
approved by the stockholders of the Corporation in the manner and by the vote
required by law.
FIFTH: (a) The total number of shares of all classes of stock of
the Corporation heretofore authorized, and the number and par value of the
shares of each class were as follows: Twelve Million shares authorized of which
Eleven Million were New Common Stock with a par value of one cent ($.01) per
share and One Million were Convertible Preferred Stock with a par value of One
Dollar ($1.00) per share.
(b) The total number of shares of all classes of stock of
the Corporation as increased, and the number and par value of the shares of each
class, are as follows: Twenty Two Million shares authorized of which Twenty-One
Million are New Common Stock with a par value of one cent ($.01) per share and
One Million are Preferred Stock with a par value of One Cent ($.01) per share.
(c) The aggregate par value of all shares of all classes of
stock of the Corporation heretofore authorized was $1,110,000.00. The aggregate
par value of all shares of all classes of stock as changed by this amendment is
$220,000.00. Although this amendment increases the total number of shares
authorized, because of the reduction in the par value per share of the Preferred
Stock, this amendment has the effect of reducing the aggregate par value of all
shares of all classes of stock of the Corporation by $890,000.00.
THE UNDERSIGNED, President of INDUSTRIAL GENETICS, INC., who
executed on behalf of said corporation the foregoing Articles of Amendment, of
which this certificate is made a part, hereby acknowledges, in the name on
behalf of said corporation, the foregoing Articles of Amendment to be the
corporate act of said corporation and further certifies that, to the best of his
knowledge, information and belief, the matters and facts set forth therein with
respect to the authorization and approval of the foregoing Articles are true in
all material respects, under the penalties of perjury.
IN WITNESS WHEREOF INDUSTRIAL GENETICS, INC. has caused these
presents to be signed in its name and on its behalf by its President and its
corporate seal to be hereunto affixed and attested by its Secretary, on July 29,
1989.
Attest: INDUSTRIAL GENETICS, INC.
___________________________ By:__________________________(SEAL)
Carl L. Kempner, Secretary Robert Austin Milch, President
INDUSTRIAL GENETICS, INC.
ARTICLES OF AMENDMENT
Industrial Genetics, Inc., a Maryland corporation, having its
principal office in this State in Columbia, Maryland (hereinafter referred to as
the "Corporation") hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: The Articles of Incorporation are hereby amended by adding
new Article NINTH as follows:
"NINTH: In carrying on its business, or for the purpose of
attaining or furthering any of its objects, the Corporation shall have all of
the rights, powers and privileges granted to corporations by the laws of the
State of Maryland, and the power to do any and all acts and things which a
natural person or partnership could do and which may now or hereafter be
authorized by law, either alone or in partnership or conjunction with others. In
furtherance and not in limitation of the powers conferred by statute, the powers
of the Corporation and of the Directors and Stockholders shall include the
following:
(a) Any Director individually, or any firm of which any Director
may be a member, or any corporation or association of which any Director may be
an officer or director or in which any Director may be interested as the holder
of any amount of its capital stock or otherwise, may be a party to, or may be
pecuniarily or otherwise interested in, any contract or transaction of the
Corporation, and, in the absence of fraud, no contract or other transaction
shall be thereby affected or invalidated; provided that in case a Director, or
firm of which a Director is a member, or a corporation or association of which a
Director is an officer or director or in which a Director is interested as the
holder of any amount of its capital stock or otherwise, is so interested, such
fact shall be disclosed or shall have been known to the Board of Directors or a
majority thereof. Any Director of the Corporation who is also a Director or
officer of or interested in such other corporation or association, or who, or
the firm of which he is a member, is so interested, may be counted in
determining the existence of a quorum at any meeting of the Board of Directors
of the Corporation which shall authorize any such contract or transaction, with
like force and effect as if he were not such director or officer of such other
corporation or association or were not so interested or were not a member of a
firm so interested.
(b) The Corporation reserves the right, from time to time, to
make any amendment of its Charter, now or hereafter authorized by law, including
any amendment which alters the contract rights, as expressly set forth in its
Charter, of any outstanding stock.
(c) Except as otherwise provided in these Articles of
Incorporation, the Charter or the By-Laws of the Corporation, as from time to
time amended, the business of the Corporation shall be managed by its Board of
Directors, which shall have and may exercise all the powers of the Corporation
except such as are by law, these Articles of Incorporation, the charter or the
By-Laws, conferred upon or reserved to the Stockholders. Additionally, the Board
of Directors of the Corporation is hereby specifically authorized and empowered
from time to time in its discretion:
(1) To authorized the issuance from time to time of shares of its
stock of any class, whether now or hereafter authorized, or securities
convertible into shares of its stock, of any class or classes, whether now or
hereafter authorized, for such considerations as said Board of Directors may
deem advisable, subject to such restrictions or limitations, if any, as may be
set forth in the By-Laws of the Corporation;
(2) By articles supplementary to these Articles of Incorporation,
to classify or reclassify any unissued shares by fixing or altering in any one
or more aspects, from time to time before issuance of such shares, the
preferences, rights, voting powers, restrictions and qualifications of, the
dividends on, the times and prices of redemption of, and the conversion rights
of, such shares."
SECOND: The amendment of the Corporation's charter as hereinabove
set forth was duly advised by a majority of the directors present at a meeting
at which a quorum was present on January 19, 1982.
THIRD: The amendment of the Corporation's charter as hereinabove
set forth was duly approved by a majority of all the votes cast at a meeting at
which a quorum was present in person or by proxy, dated January 29, 1982, at a
Special Meeting of the Stockholders of the Corporation.
IN WITNESS WHEREOF, Industrial Genetics, Inc. has caused these
presents to be signed in its name and on its behalf by its President and
attested by its Secretary this 29th day of January, 1982. Each of the
undersigned officers of Industrial Genetics, Inc. acknowledges, under the
penalties for perjury, that these Articles of Amendment are the corporate act of
said Corporation, and that the matters and facts set forth herein are true in
all material respects to the best of his knowledge, information and belief.
ATTEST: INDUSTRIAL GENETICS, INC.
- -------------------------- ----------------------------
Carl L. Kempner Robert Austin Milch
Secretary President
INDUSTRIAL GENETICS, INC.
ARTICLES OF AMENDMENT
INDUSTRIAL GENETICS, INC., a Maryland corporation, having its
principal office in this State in Columbia, Maryland (the "Corporation")
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: The Corporation desires to amend its Charter as currently
in effect. The Corporation's Charter is hereby amended by deleting Article FIFTH
and by substituting new Article FIFTH as set forth below, and by deleting
Article SIXTH and by substituting new Article SIXTH as set forth below:
"FIFTH: The total number of shares of capital
stock which the Corporation has authority to issue is Twelve
Million (12,000,000) shares, of which Eleven Million
(11,000,000) shall be New Common Stock with a par value of
one cent ($.01) per share and an aggregate par value of One
Hundred Ten Thousand Dollars ($110,000.00) and of which One
Million ($1,000,000) shall be Convertible Preferred Stock
with a par value of One Dollar ($1.00) per share and an
aggregate par value of One Million Dollars ($1,000,000.00).
The total aggregate par value is One Million One Hundred Ten
Thousand Dollars ($1,110,000.00).
(a) A description of each class with its rights,
voting powers, restrictions, limitations as to dividends and
qualifications is as follows:
1. In the event of the dissolution and/or
liquidation of the Corporation, the holders of the
Convertible Preferred Stock shall be entitled to receive out
of the funds available for distribution, an amount per share
equal to the purchase price of such share of Convertible
Preferred Stock, before any distribution is made to the
holders of the New Common Stock. After the said preferred
payment all sums remaining for distribution to stockholders
shall be distributed to the Convertible Preferred
Shareholders and the New Common Shareholders on a pro rata
basis according to the number of shares held by each such
stockholder without differentiation as to classification.
2. The holders of the New Common Stock and the
Convertible Preferred Stock shall be entitled to vote for
the election of directors, and upon all other matters which
the holders of stock are permitted or entitled to vote under
the laws of the State of Maryland.
3. Each share of Convertible Preferred Stock is
convertible at any time, at the option of the holder, into
one share of New Common Stock.
SIXTH: The number of directors of the Corporation
shall be no less than five (5) and no greater than nine (9),
which numbers may be increased or decreased pursuant to the
By-Laws of the Corporation. In the event that there are less
than three (3) stockholders, the number of directors may be
less than three (3) but not less than the number of
stockholders."
SECOND: The amendment of the Corporation's Charter as hereinabove
set forth was duly advised by the Board of Directors of the Corporation at a
meeting at which a quorum was present on June 17, 1982.
THIRD: The amendment to the Corporation's Charter as hereinabove
set forth, was duly approved by the stockholders of the Corporation at a Special
Meeting of Stockholders at which a quorum was present held on June 28, 1982.
FOURTH: The amendment to the Corporation's Charter as hereinabove
set forth has been duly advised by the Board of Directors and approved by the
stockholders of the Corporation.
FIFTH: Prior to the filing of these Articles of Amendment, the
Corporation had authority to issue Twelve Million (12,000,000) shares of Capital
stock, consisting of Ten Million (10,000,000) shares of Common Stock with a par
value of one cent ($.01) per share and having an aggregate par value of One
Hundred Thousand Dollars ($100,000.00), One Million (1,000,000) shares of Class
A Common Stock with a par value of one cent ($.01) per share and an aggregate to
par value of Ten Thousand Dollars ($10,000.00) and One Million (1,000,000)
shares of Convertible Preferred Stock with a par value of One Dollar ($1.00) per
share and an aggregate par value of One Million Dollars ($1,000,000.00). The
aggregate par value of all shares of capital stock authorized prior to the
filing of the Article of Amendment was One Million One Hundred Ten Thousand
Dollars ($1,110,000.00).
SIXTH: After the filing of these Articles of Amendment, the
corporation shall have the authority to issue Twelve Million (12,000,000) shares
of capital stock, consisting of Eleven Million (11,000,000) shares of New Common
Stock with a par value of one cent ($.01) per share and an aggregate par value
of One Hundred Ten Thousand Dollars ($110,000.00) and One Million (1,000,000)
shares of Convertible Preferred Stock with a par value of One Dollar ($1.00) per
share and an aggregate par value of One Million Dollars ($1,000,000.00). The
aggregate par value of all shares of capital stock authorized after the filing
of these Articles of Amendment is One Million One Hundred Ten Thousand Dollars
($1,110,000.00).
SEVENTH: A description of each class of stock of the Corporation,
including the preferences, voting powers, and conversion and other rights and
restrictions of each class of the authorized capital stock are as set forth in
Article FIRST of these Articles of Amendment.
IN WITNESS WHEREOF, Industrial Genetics, Inc., has caused these
presents to be signed in its name and on its behalf by its President and
attested by its Secretary this 17th day of June 1987, and its said President
acknowledges under penalties of perjury that these Articles of Amendment are the
corporate act of said Corporation, and that, to the best of his knowledge,
information and belief, the matters and facts set forth herein are true in all
material respects.
ATTEST: INDUSTRIAL GENETICS, INC.
______________________ By_________________________
Carl L. Kempner Robert Austin
Milch Secretary President
ARTICLES OF INCORPORATION
OF
INDUSTRIAL GENETICS, INC.
FIRST: I, Shale D. Stiller, whose post office address is 1300
Mercantile Bank & Trust Building, 2 Hopkins Plaza, Baltimore, Maryland 21201,
being at least eighteen (18) years of age, hereby form a corporation under and
by virtue of the General Laws of the State of Maryland.
SECOND: The name of the corporation (hereinafter called the
"Corporation") is Industrial Genetics, Inc.
THIRD: The purposes for which the Corporation is formed are:
(a) To engage in any and all activities relating
to mutated and genetically engineered microorganisms.
(b) To carry on the aforesaid business and any
related or unrelated business and activity in the State of Maryland, in any
state, territory, district or dependency of the United States, or in any foreign
country.
(c) To do anything permitted in Section 2-103 of
the Corporations and Associations Article of the Annotated Code of Maryland, as
amended from time to time.
FOURTH: The post office address of the principal office of the
Corporation in this State is 8406 Park Heights Avenue, Pikesville, Maryland
21208. The name and post office address of the resident agent of the Corporation
in this State is Dr. Robert Austin Milch, 8406 Park Heights Avenue, Pikesville,
Maryland 21208. Said agent is an individual actually residing in this State.
FIFTH: The total number of shares of capital stock which the
Corporation has authority to issue is Twelve Million (12,000,000) shares, of
which Ten Million (10,000,000) shall be Common Stock with a par value of one
cent ($.01) per share, of which One Million (1,000,000) shall be Class A Common
Stock with a par value of one cent ($.01) per share, and of which One Million
(1,000,000) shall be Convertible Preferred Stock with a par value of One Dollar
($1.00) per share. The total aggregate par value is One Million One Hundred Ten
Thousand Dollars ($1,110,000).
(a) A description of each class with its rights,
voting powers, restrictions, limitations as to dividends and
qualifications is as follows:
1. In the event of the dissolution and/or
liquidation of the Corporation, the holders
of the Convertible Preferred Stock shall be
entitled to receive, out of the funds
available for distribution, an amount per
share equal to the purchase price of such
share of Convertible Preferred Stock,
before any distribution is made to the
holders of the Class A Common Stock, or to
the holders of the Common Stock. After the
said preferred payment, the holders of the
Class A Common Stock shall be entitled to
receive out of funds available for
distribution, an amount equal to One Dollar
($1.00) per share before any distribution
to the holders of the Common Stock. After
the said preferred payment, all sums
remaining for distribution to stockholders
shall be distributed to the Common, the
Class A and the Convertible Preferred
Shareholders, pro rata according to the
number of shares held by each such
stockholder without differentiation as to
classification.
2. The holders of the Common Stock, Class A
Common Stock and the holders of the
Convertible Preferred Stock shall be
entitled to vote for the election of
directors, and upon all other matters which
the holders of stock are permitted or
entitled to vote under the laws of the
State of Maryland.
3. Each share of Convertible Preferred Stock,
is convertible at any time at the option of
the holder, into one share of Common Stock.
SIXTH: The number of directors of the Corporation shall be five
(5) which number may be increased or decreased pursuant to the By-Laws of the
Corporation, and so long as there are less than three (3) stockholders, the
number of directors may be less than three (3) but not less than the number of
stockholders. The names of the directors, who shall act until the first annual
meeting or until their successors are duly chosen and qualified are: Dr. Robert
Austin Milch, William T. Hall, Carl L. Kempner, Kenneth D. Weiser and Thomas L.
Kempner.
SEVENTH: No Stockholder of the Corporation shall have any
preferential or pre- emptive right to acquire additional shares of stock of the
Corporation except to the extent that, and on such terms as, the Board of
Directors from time to time may determine.
EIGHTH: The Corporation shall have the power to indemnify, by
express provision in its By-Laws, by Agreement or by majority vote of either its
stockholders or disinterested directors, any one or more of the following
classes of individuals: (1) present or former directors and/or officers of the
Corporation, (2) present or former agents and/or employees of the Corporation,
(3) present or former administrators, trustees or other fiduciaries under
pension, profit sharing, deferred compensation, or any other employee benefit
plan maintained by the Corporation and (4) persons serving or who have served at
the request of the Corporation in any of the aforementioned capacities for any
other corporation, partnership, joint venture, trust, or other enterprises.
Provided, however, that the Corporation shall not have the power to indemnify
any person if such indemnification would be contrary to Section 2-418 of the
Corporations and Associations Article of the Annotated Code of Maryland, or any
statute, rule or regulation of similar import.
IN WITNESS WHEREOF, I do hereby acknowledge these Articles of
Incorporation to be my act this 27th day of October, 1981.
_____________________ (SEAL)
SHALE D. STILLER
IGI BIOTECHNOLOGY, INC.
ARTICLES OF AMENDMENT
IGI Biotechnology, Inc., a Maryland corporation having its
principal office at 9110 Red Branch Road, Columbia, Maryland (hereinafter called
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: The charter of the Corporation, as heretofore amended,
further amended by striking out Article Second of the Certificate of
Incorporation and inserting in lieu thereof the following:
"SECOND: The name of the Corporation (hereinafter called the
Corporation) is IGENE BIOTECHNOLOGY, INC."
SECOND: The Board of Directors of the Corporation at a meeting
held April 1, 1986, unanimously adopted a resolution in which was set forth the
foregoing amendment to the charter, declaring that the amendment was advisable,
and directing that it be submitted to the stockholders of the Corporation for
action thereon.
THIRD: Pursuant to notice, a summary of the amendment as proposed
by the Board of Directors was duly given to the stockholders who approved the
amendment at a meeting held on April 14, 1986, by the vote required by law.
FOURTH: The amendment of the charter of the Corporation as
hereinabove set forth has been duly advised by the Board of Directors and
approved by the stockholders of the Corporation by the vote required by law.
IN WITNESS WHEREOF, IGI Biotechnology, Inc. has caused this
instrument to be filed in its name and on its behalf by its President, Robert
Austin Milch, and witnessed by its Secretary, William T. Hall, on the 17th day
of April, 1986.
The President acknowledges these Articles of Amendment to be the
corporate act of the Corporation and states that to the best of his knowledge,
information and belief the matters and facts set forth in these Articles with
respect to the authorization and approval of the amendment of the Corporation's
charter are true in all material respects and that this statement is made under
the penalties of perjury.
ATTEST: IGI BIOTECHNOLOGY, INC.
__________________________ By: _______________________
Secretary President
IGI BIOTECHNOLOGY, INC.
ARTICLES OF AMENDMENT
IGI Biotechnology, Inc., a Maryland corporation having its
principal office in Columbia, Maryland (hereinafter called the "Corporation"),
hereby certifies to the State Department of Assessments and Taxation of Maryland
that:
FIRST: The charter of the Corporation is hereby amended by
striking out Article FIFTH and inserting in lieu thereof the following:
FIFTH: The total number of shares of stock of all classes
which the Corporation has authority to issue is Eleven Million Five
Hundred Thousand (11,500,000) shares divided into Ten Million
(10,000,000) shares par value of One Cent ($.01) per share of Common
Stock, having an aggregate par value of One Hundred Thousand Dollars
($100,000.00) and One Million Five Hundred Thousand (1,500,000) shares
of the par value of One Cent ($.01) per share of Preferred Stock
having an aggregate par value of Fifteen Thousand Dollars
($15,000.00). The aggregate par value of all shares of stock is One
Hundred Fifteen Thousand Dollars ($115,000.00).
SECOND: On the effective date of this amendment:
(a) Each share of issued and outstanding Common Stock of the
par value of $2.00 per share shall be changed into one share of Common
Stock of the par value of $.01 per share and each then outstanding
certificate representing issued and outstanding shares of Common Stock
of the par value of $2.00 per share shall thereafter represent the
same number of shares of Common Stock of the par value of $0.01 per
share.
(b) Each stockholder of the Corporation, upon surrender of
the certificates representing Common Stock of the par value of $2.00
per share held prior to the foregoing amendment, shall be entitled to
receive new certificates representing their ownership of the number of
the Corporation's Common Stock of the par value of $0.01 per share.
(c) That stockholders may exchange certificates representing
shares outstanding prior to the 200 to 1 reverse stock split for
certificates representing shares of Common Stock with a par value of
$0.01 per share without being required to first obtain certificates
for Common Stock with a par value of $2.00 per share subject to the
approval of the stockholders.
THIRD: The amendment of the charter of the Corporation as
hereinabove set forth has been duly advised by the board of directors and
approved by the stockholders of the Corporation in the manner and by the vote
required by law.
FOURTH: (a) The total number of shares of all classes of stock of
the Corporation heretofore authorized was 1,605,000 shares, of which 105,000
shares were designated Common Stock of the par value of $2.00 per share and
1,500,000 shares were designated Preferred Stock, of the par value of One Cent
($.01) per share.
(b) The total number of shares of all classes of stock of
the Corporation as increased is 11,500,000 shares, of which 10,000,000
shares are designated Common Stock and 1,500,000 shares are designated
Preferred Stock, all of the par value of One Cent ($.01) per share.
(c) The aggregate par value of all authorized shares of all
classes of stock of the Corporation is $115,000 and is reduced by this
amendment by $110,000.
(d) No change was made by this amendment in the rights,
powers, restrictions, limitations, qualifications or terms and
conditions of redemption of either class of authorized stock.
THE UNDERSIGNED, President of IGI Biotechnology, Inc. who
executed on behalf of said corporation the foregoing Articles of Amendment, of
which this certificate is made a part, hereby acknowledges, in the name and on
behalf of said Corporation, the foregoing Articles of Amendment to be the
corporate act of said Corporation and further certifies that, to the best of his
knowledge, information and belief, the matters and facts set forth therein are
true in all material respects, under the penalties of perjury.
IN WITNESS WHEREOF IGI Biotechnology, Inc. has caused these
presents to be signed in its name and on its behalf by its President and its
corporate seal to be hereunto affixed and attested by its Secretary.
Attest: IGI BIOTECHNOLOGY, INC.
---------------------------- By: ----------------------------
Secretary President
[Affix corporate seal]
IGI BIOTECHNOLOGY, INC.
ARTICLES OF AMENDMENT
IGI Biotechnology, Inc., a Maryland corporation having its
principal office in Columbia, Maryland (hereinafter called the "Corporation"),
hereby certifies to the State Department of Assessments and Taxation of Maryland
that:
FIRST: The Charter of the Corporation is hereby amended by
striking out Article FIFTH and inserting in lieu thereof the following:
FIFTH: The total number of shares of stock of all classes
which the Corporation has authority to issue is One Million Six
Hundred Five Thousand (1,605,000) shares divided into One Hundred Five
Thousand (105,000) shares par value of Two Dollars ($2.00) per share
of Common Stock, having an aggregate par value of Two Hundred Ten
Thousand Dollars ($210,000.00) and One Million Five Hundred Thousand
(1,500,000) shares of the par value of One Cent ($.01) per share of
Preferred Stock having an aggregate par value of Fifteen Thousand
Dollars ($15,000.00). The aggregate par value of all shares of stock
is Two Hundred Twenty Five Thousand Dollars ($225,000.00).
SECOND: On the effective date of this amendment:
(a) Each two hundred shares of issued and outstanding Common
Stock of the par value of $.01 per share shall be changed into one
share of Common Stock of the par value of $2.00 per share and each
then outstanding certificate representing issued and outstanding
shares of Common Stock shall thereafter represent (i) the number of
shares equal to the largest integral number which when multiplied by
200 does not exceed the number of shares which such certificate
previously represented and (ii) the right to receive a cash payment of
$.40 multiplied by (x) the number of shares previously represented by
such certificate minus (y) the number of shares which such certificate
shall henceforth represent multiplied by 200.
(b) Each stockholder of the Corporation, upon surrender of
the certificates representing Common Stock of the par value of $.01
per share held prior to the foregoing amendment, shall be entitled to
receive new certificates of the par value of $2.00 per share
representing their ownership of the number of the Corporation's Common
Stock determined in accordance with the formula set forth in
subparagraph (a) above.
(c) No fractional shares of Common Stock shall be issued and
the holders of Common Stock shall not be able to become entitled to
any fractional shares of Common Stock by reason of the
reclassification and change of Common Stock provided in subparagraph
(a) above. If rights to fractions of a share of Common Stock result
from such reclassification, the Corporation shall for each such
fraction deliver to each holder a cash payment of $.40 for each share
of Common Stock owned prior to the reclassification which such
fraction represents in accordance with the formula set forth in the
resolution above.
THIRD: The amendment of the charter of the Corporation as
hereinabove set forth has been duly advised by the board of directors and
approved by the stockholders of the Corporation in the manner and by the vote
required by law.
FOURTH: (a) The total number of shares of all classes of stock of
the Corporation heretofore authorized was 22,500,000 shares, of which 21,000,000
shares were designated Common Stock and 1,500,000 shares were designated
Preferred Stock, all of the par value of One Cent ($.01) per share.
(b) The total number of shares of all classes of stock of
the Corporation as decreased is 1,605,000 shares, of which 105,000
shares are designated Common Stock of a par value of $2.00 per share
and 1,500,000 shares are designated Preferred Stock, of the par value
of One Cent ($.01) per share.
(c) The aggregate par value of all authorized shares of all
classes of stock of the Corporation is $225,000 and is not affected by
this amendment.
(d) No change was made by this amendment in the rights,
powers, restrictions, limitations, qualifications or terms and
conditions of redemption of either class of authorized stock.
THE UNDERSIGNED, President of IGI Biotechnology, Inc. who
executed on behalf of said corporation the foregoing Articles of Amendment, of
which this certificate is made a part, hereby acknowledges, in the name and on
behalf of said Corporation, the foregoing Articles of Amendment to be the
corporate act of said Corporation and further certifies that, to the best of his
knowledge, information and belief, the matters and facts set forth therein are
true in all material respects, under the penalties of perjury.
IN WITNESS WHEREOF IGI Biotechnology, Inc. has caused these
presents to be signed in its name and on its behalf by its President and its
corporate seal to be hereunto affixed and attested by its Secretary.
Attest: IGI BIOTECHNOLOGY, INC.
- ------------------------ By:-----------------------------
Secretary President
[Affix corporate seal]
IGI BIOTECHNOLOGY, INC.
ARTICLES OF AMENDMENT
IGI Biotechnology, Inc., a Maryland corporation having its
principal office at 9110 Red Branch Road, Columbia, Maryland 21045 (hereinafter
called the "Corporation") hereby certifies to the State Department of
Assessments and Taxation that:
FIRST: The charter of the Corporation is hereby amended by
striking out Article FIFTH and inserting in lieu thereof following:
FIFTH: The total number of shares of capital stock of all
classes which the Corporation has authority to issue is Twenty-Two
Million Five Hundred Thousand (22,500,000) shares, of which Twenty-One
Million (21,000,000) shares shall be New Common Stock with a par value
of One Cent ($.01) per share and an aggregate par value of Two Hundred
Ten Thousand Dollars $(210,000.00) and of which One Million Five
Hundred Thousand (1,500,000) shares shall be Preferred Stock with a
par value of One Cent ($.01) per share and an aggregate par value of
Fifteen Thousand Dollars ($15,000.00). The total aggregate par value
of all authorized stock is Two Hundred Twenty-Five Thousand Dollars
($225,000.00). All of the authorized shares of Preferred Stock are
hereby classified as Series A Preferred Stock, and the shares of New
Common Stock and Series A Preferred Stock shall have the rights,
powers, privileges, restrictions and limitations described in the
Articles Supplementary previously recorded on December 29, 1983.
SECOND: The board of directors of the Corporation, at a meeting
duly convened and held on September 21, 1984, adopted a resolution in which was
set forth the foregoing amendment to the charter, declaring that the said
amendment was advisable and directing that it be submitted for action thereon at
a special meeting of the stockholders of the Corporation to be held on Monday,
December 17, 1984.
THIRD: Notice setting forth the aforesaid amendment of the
charter and stating that a purpose of the meeting of the stockholders would be
to take action thereon, was given as required by law, to all stockholders of the
Corporation entitled to vote thereon. The amendment of the charter of the
Corporation as hereinabove set forth was approved by the stockholders of the
Corporation at said meeting by the affirmative vote of the holders of at least
two-thirds of the presently issued and outstanding Series A Preferred Stock and
by stockholders holding at least two-thirds of all the presently issued and
outstanding stock of the Corporation of all classes.
FOURTH: The amendment of the charter of the Corporation as
hereinabove set forth has been duly advised by the board of directors and
approved by the stockholders of the Corporation in the manner and by the vote
required by the Corporation's charter and by applicable law.
FIFTH: (a) The total number of authorized shares of all classes
of stock of the Corporation before the amendment and the number and par value of
each class, are as follows: Twenty-Two Million (22,000,000) shares, of which One
Million (1,000,000) were Series A Preferred Stock with a par value of One Cent
($.01) per share, and Twenty-One Million (21,000,000) were New Common Stock with
a par value of One Cent ($.01) per share.
(b) The total number of shares of all classes of stock of
the Corporation as increased, and the number and par value of each class, are as
follows: Twenty- Two Million Five Hundred Thousand (22,500,000) shares, of which
Twenty-One Million (21,000,000) shall be New Common Stock with a par value of
One Cent ($.01) per share and One Million Five Hundred Thousand (1,500,000)
shall be Series A Preferred Stock with a par value of One Cent ($.01) per share.
(c) The aggregate par value of all shares of all classes of
stock of the Corporation heretofore authorized was Two Hundred Twenty Thousand
Dollars ($220,000.00). The aggregate par value of all shares of all classes of
stock, as increased by this amendment, is Two Hundred Twenty-Five Thousand
Dollars ($225,000.00). This amendment has the effect of increasing the aggregate
par value of all authorized shares of all classes of stock of the Corporation by
Five Thousand Dollars ($5,000.00).
The undersigned President of IGI BIOTECHNOLOGY, INC., who
executed on behalf of said Corporation the foregoing Articles of Amendment, of
which this certificate is made a part, hereby acknowledges, in the name and on
behalf of said Corporation, the foregoing articles of amendment to be the
corporate act of said Corporation and further certifies that, to the best of his
knowledge, information and belief, the matters and facts set forth herein are
true in all material respects, under the penalties of perjury.
IN WITNESS WHEREOF, IGI BIOTECHNOLOGY, INC. has caused these
presents to be signed in its name and on its behalf by its President and its
corporate seal to be hereunto affixed and attested by its Assistant Secretary,
on January __, 1985.
Attest: IGI BIOTECHNOLOGY, INC.
- ------------------------- By:-----------------------(SEAL)
William T. Hall Robert Austin Milch
Assistant Secretary President