REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
IGENE BIOTECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 52-1230461
(State or other jurisdiction (IRS employer
of incorporation or organization) identification no.)
9110 RED BRANCH ROAD
COLUMBIA, MARYLAND 21045
(410) 997-2599
(Address of principal executive offices)
IGENE BIOTECHNOLOGY, INC. 1997 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
STEPHEN F. HIU
9110 RED BRANCH ROAD
COLUMBIA, MARYLAND 21045
(410) 997-2599
(NAME, ADDRESS AND TELEPHONE NUMBER,
INCLUDING AREA CODE OF AGENT FOR SERVICE)
With Copies To:
CECIL E. MARTIN, III
MCGUIRE, WOODS, BATTLE & BOOTHE LLP
ONE NORTH CHARLES STREET
BALTIMORE, MARYLAND 21201-3793
(410) 659-4419
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE
TITLE OF SECURITIES TO BE PRICE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE REGISTERED FEE
<S> <C> <C> <C> <C>
Common Stock 20,000,000 $ .05250 $ 1,050,000 $ 310.
$.01 par value shares(2)
(1) Estimated solely for purposes of calculating the registration fee and,
pursuant to Rule 457(c) and (h) of the Securities Acto of 1933, based
upon the average of the high and low sale prices of the Common Stock of
Igene Biotechnology, Inc., as reported on the Nasdaq National Market on
September 29, 1998.
(2) There are also being registered hereunder such additional shares as may
be issued pursuant to the anti-dilution provisions of the plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The documents containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Act").
Such documents need not be filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule
424 under the Act. These documents and the documents incorporated by
reference in the Registration Statement pursuant to Item 3 of Part II
of this Form S-8, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Act. See Rule 428(a)(1) under
the Act
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1997;
(b) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1998;
(c) Item 1 of the Registrant's Registration Statement on Form 8-A, as
amended, filed May 20, 1987 to register the Registrant's Common Stock, par
value $.01 per share (the "Common Stock"), pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(d) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation and By-laws of the Registrant provide
for the Registrant to indemnify its officers, directors and employees to
the fullest extent permitted by the Maryland General Corporation Law
against certain liabilities and expenses.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
4 - 1997 Stock Option Plan
5 - Opinion of McGuire Woods Battle & Booth LLP
23(a) - Consent of McGuire Woods Battle & Boothe LLP. Included in
Exhibit 5 to this Registration Statement.
23(b) - Consent of Berenson & Company LLP.
24 - Power of Attorney (included on signature page).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remains unsold at
the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Columbia, State of Maryland, on
the 30th day of September, 1998.
IGENE Biotechnology, Inc.
(Registrant)
By: /s/ Stephen F. Hiu
Stephen F. Hiu
President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes Michael G. Kimelman, Thomas L. Kempner, Stephen F.
Hiu, and Patrick F. Monahan and each of them acting individually, with full
power of substitution to file one or more amendments, including Post-
Effective Amendments, to this Registration Statement, which Amendments may
make such changes as any of them deems appropriate, and each person whose
signature appears below, individually and in each capacity stated below,
hereby appoints Michael G. Kimelman, Thomas L. Kempner, Stephen F. Hiu and
Patrick F. Monahan and each of them acting individually, with full power of
substitution, as Attorney-in-Fact to execute his name and on his behalf to
file any such Amendments to this Registration Statement.
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Signature Title Date
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/s/ Michael G. Kimelman Chairman of the Board September 30, 1998
Michael G. Kimelman of Directors
/s/ Thomas L. Kempner Vice Chairman of the September 30, 1998
Thomas L. Kempner Board of Directors
/s/ Stephen F. Hiu Director, President, September 30, 1998
Stephen F. Hiu Treasurer,
Chief Operating Officer,
Chief Financial Officer and
Chief Accounting Officer
/s/ Joseph C. Abeles Director September 30, 1998
Joseph C. Abeles
/s/ John A. Cenerazzo Director September 30, 1998
John A. Cenerazzo
/s/ Sidney R. Knafel Director September 30, 1998
Sidney R. Knafel
/s/ Patrick F. Monahan Director, Secretary September 30, 1998
Patrick F. Monahan
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EXHIBIT INDEX
Exhibit
Number Description
4 1997 Stock Option Plan
5 Opinion of McGuire Woods Battle & Boothe LLP
23(a) Consent of McGuire Woods Battle & Boothe LLP.
Included in Exhibit 5 to this Registration
Statement.
23(b) Consent of Berenson & Company LLP.
24 Power of Attorney (included on signature page).
Exhibit 4
IGENE BIOTECHNOLOGY, INC.
1997 STOCK OPTION PLAN
1. Purpose. The purpose of this IGENE Biotechnology, Inc.
1997 Stock Option Plan (the "Plan") is to advance the interests of
IGENE Biotechnology, Inc. (the "Company") by encouraging and enabling
the acquisition of a larger personal proprietary interest in the
Company by directors, key employees, and consultants (including
independent contractors) who are employed by, or perform services for,
the Company and its Subsidiaries and upon whose judgment and keen
interest the Company is largely dependent for the successful conduct of
its operations. The Company also expects that the opportunity to
acquire such a proprietary interest will enable the Company and its
Subsidiaries to attract and retain desirable personnel, directors and
other service providers. The Plan is intended to conform to the
provisions of Securities and Exchange Commission Rule 16b-3.
2. Definitions. As used in the Plan, the following terms have
the meanings indicated:
(a) "Act" means the Securities Exchange Act of 1934, as
amended.
(b) "Applicable Withholding Taxes" means the aggregate
amount of federal, state and local income and payroll taxes that
the Company is required to withhold in connection with any
exercise of a Nonstatutory Stock Option by an employee.
(c) "Board" means the board of directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the committee appointed by the
Board as described under Section 12.
(f) "Company" means IGENE Biotechnology, Inc.
(g) "Company Stock" means Common Stock, $.01 par value,
of the Company. If the par value of the Company Stock is
changed, or in the event of a change in the capital structure of
the Company (as provided in Section 11), the shares resulting
from such a change shall be deemed to be Company Stock within the
meaning of the Plan.
(h) "Date of Grant" means the date on which the Committee
grants an Incentive Award.
(i) "Disability" or "Disabled" means, as to an Incentive
Stock Option, a Disability within the meaning of Code section
22(e)(3). As to all other Incentive Awards, the Committee shall
determine whether a Disability exists and such determination
shall be conclusive.
(j) "Fair Market Value" means as of the Date of Grant
(or, if there were no trades on the Date of Grant, the last
preceding day on which Company Stock is traded) (i) if the
Company Stock is traded on an exchange the average of the highest
and lowest registered sales prices of the Company Stock at which
it is traded on such day on the exchange on which it generally
has the greatest trading volume, (ii) if the Company Stock is
traded on the over-the-counter market, the average between the
lowest bid and highest asked prices as reported by The Wall
Street Journal, or (iii) if shares of Common Stock are not traded
on any exchange or over-the-counter market, the fair market value
shall be determined by the Committee using any reasonable method
in good faith.
(k) "Incentive Award" means, collectively, the award of a
Nonstatutory Stock Option or Incentive Stock Option under the
Plan.
(l) "Incentive Stock Option" means an Option that meets
the requirements of, and qualifies for favorable federal income
tax treatment under, Code section 422. Incentive Stock Options
may only be granted to employees of the Company.
(m) "Non-Employee Director" means a member of the Board
who is not an employee of the Company, a Parent or a Subsidiary.
(n) "Nonstatutory Stock Option" means an Option that does
not meet the requirements of Code section 422, or, even if
meeting the requirements of Code section 422, is not intended to
be an Incentive Stock Option and is so designated.
(o) "Option" means a right to purchase Company Stock
granted under the Plan, at a price determined in accordance with
the Plan.
(p) "Parent" means, with respect to any corporation, a
parent of that corporation within the meaning of Code section
424(e).
(q) "Participant" means any employee, consultant, or Non-
Employee Director who receives an Incentive Award under the Plan.
(r) "Rule 16b-3" means Rule 16b-3 of the Securities and
Exchange Commission promulgated under the Act. A reference in
the Plan to Rule 16b-3 shall include a reference to any
corresponding rule (or number redesignation) of any amendments to
Rule 16b-3 enacted after the effective date of the Plan's
adoption.
(s) "Subsidiary" means, with respect to any corporation,
a subsidiary of that corporation within the meaning of Code
section 424(f).
(t) "10% Shareholder" means a person who owns, directly
or indirectly, stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or
any Parent or Subsidiary of the Company. Indirect ownership of
stock shall be determined in accordance with Code section 424(d).
3. General. Incentive Awards under the Plan may be either
Incentive Stock Options or Nonstatutory Stock Options.
4. Stock. Subject to Section 11 of the Plan, there shall be
reserved for issuance under the Plan an aggregate of 20,000,000 shares
of Company Stock, which shall be treasury or authorized but unissued
shares. Shares allocable to Options or portions thereof granted under
the Plan that expire or otherwise terminate unexercised may again be
subjected to an Incentive Award under the Plan. The Committee is
expressly authorized to make an Incentive Award to a Participant
conditioned upon the surrender for cancellation of an option granted
under an existing Incentive Award. For purposes of determining the
number of shares that are available for Incentive Awards under the
Plan, such number shall include the number of shares surrendered by an
optionee or retained by the Company in payment of Applicable
Withholding Taxes. No more than 2,000,000 shares may be allocated to
the Incentive Awards that are granted to any individual Participant
during any single calendar year, including any option which is
cancelled or repriced during a calendar year.
5. Eligibility.
(a) All present and future employees of the Company and
individuals who are consultants to the Company (or any Parent or
Subsidiary of the Company, whether now existing or hereafter created or
acquired) shall be eligible to receive Incentive Awards under the Plan.
The Committee shall have the power and complete discretion, as provided
in Section 12, to select eligible individuals to receive Incentive
Awards and to determine for each individual the terms and conditions,
the nature of the award and the number of shares to be allocated to
each individual as part of each Incentive Award. Non-Employee
Directors are eligible to receive Incentive Awards in accordance with
Section 13.
(b) The grant of an Incentive Award shall not obligate
the Company or any Parent or Subsidiary of the Company to pay a
Participant any particular amount of remuneration, to continue the
employment of the Participant after the grant or to make further grants
to the Participant at any time thereafter.
6. Stock Options.
(a) Whenever the Committee deems it appropriate to grant
Options, notice shall be given to the Participant stating the number of
shares for which Options are granted, the Option price per share,
whether the Options are Incentive Stock Options or Nonstatutory Stock
Options, and the conditions to which the grant and exercise of the
Options are subject. This notice, when duly accepted in writing by the
Participant, shall become a stock option agreement between the Company
and the Participant.
(b) The exercise price of shares of Company Stock covered
by an Incentive Stock Option shall be not less than 100% of the Fair
Market Value of such shares on the Date of Grant; provided that if an
Incentive Stock Option is granted to a Participant who, at the time of
the grant, is a 10% Shareholder, then the exercise price of the shares
covered by the Incentive Stock Option shall be not less than 110% of
the Fair Market Value of such shares on the Date of Grant.
(c) The Committee shall establish the exercise price of
shares covered by a Nonstatutory Stock Option.
(d) Options may be exercised in whole or in part at such
times as may be specified by the Committee in the Participant's stock
option agreement; provided that, the exercise provisions for Incentive
Stock Options shall in all events not be more liberal than the
following provisions:
(i) No Incentive Stock Option may be exercised
after ten years (or, in the case of an Incentive Stock
Option granted to a 10% Shareholder, five years) from the
Date of Grant.
(ii) An Incentive Stock Option by its terms, shall
be exercisable in any calendar year only to the extent that
the aggregate Fair Market Value (determined at the Date of
Grant) of the Company Stock with respect to which Incentive
Stock Options are exercisable for the first time during the
calendar year does not exceed $100,000 (the "Limitation
Amount"). Incentive Stock Options granted under the Plan
and all other plans of the Company and any Parent or
Subsidiary of the Company shall be aggregated for purposes
of determining whether the Limitation Amount has been
exceeded. The Board may impose such conditions as it deems
appropriate on an Incentive Stock Option to ensure that the
foregoing requirement is met.
(iii) If Incentive Stock Options that first become
exercisable in a calendar year exceed the Limitation
Amount, the excess Options will be treated as Nonstatutory
Stock Options to the extent permitted by law. If an Option
designated as an Incentive Stock Options otherwise fails to
qualify as an incentive stock option under the Code, the
Option shall be treated as a Nonstatutory Stock Option.
(e) Options by their terms shall become fully exercisable
upon (i) the Participants retirement on or after his 65th birthday,
(ii) the Disability or death of the Participant, or (iii) under any
special circumstances which in the opinion of the Committee warrant
special consideration.
(f) All Options shall expire, to the extent unexercised,
ten years from the Date of Grant. In addition, except as provided
below, the unexercised Options may not be exercised after the tenth
business day following the Participant's cessation of service as an
employee, Non-Employee Director, or consultant, except that the
committee may, in its absolute discretion, extend the privilege to
exercise all or any part of the option until the end of its stated term
or for any lesser period it deems appropriate. In the case of the
Participant's retirement on or after attaining age 65,or the
Participant's Disability, Options may not be exercised after three
months after the Participant's cessation of service. In the case of
the Participant's death, Options may not be exercised after six months
after the Participant's death. If the Company terminates the
Participant's employment or service due to the Participant's violation
of his duties, the Option may not be exercised after the cessation of
service.
7. Method of Exercise of Options.
(a) Options may be exercised by the Participant giving written notice
of the exercise to the Company, stating the number of shares the
Participant has elected to purchase under the Option. In the case of
the purchase of shares under an Option, such notice shall be effective
only if accompanied by the exercise price in full in cash; provided,
however, that if the terms of an Option so permit, the Participant may
(i) deliver Mature Shares of Company Stock (valued at their Fair Market
Value on the date of exercise) in satisfaction of all or any part of
the exercise price, or (ii) such other method as approved by the
Committee. "Mature Shares" means shares of Company Stock for which the
holder has good title, free and clear of all liens and encumbrances and
which such holder has held for at least six months
(b) The Company may place on any certificate representing
Company Stock issued upon the exercise of an Option any legend deemed
desirable by the Company's counsel to comply with federal or state
securities laws, and the Company may require a customary written
indication of the Participant's investment intent. Until the
Participant has made any required payment, including any Applicable
Withholding Taxes, and has had issued a certificate for the shares of
Company Stock acquired, he or she shall possess no shareholder rights
with respect to the shares.
(c) Each Participant shall agree as a condition of the
exercise of an Option to pay to the Company, or make arrangements
satisfactory to the Company regarding the payment to the Company of,
Applicable Withholding Taxes. Until such amount has been paid or
arrangements satisfactory to the Company have been made, no stock
certificate shall be issued upon the exercise of an Option.
(d) As an alternative to making a cash payment to the
Company to satisfy Applicable Withholding Taxes, if the Option
agreement so provides, the Participant may, subject to the provisions
set forth below, elect to (i) deliver shares of already owned Company
Stock or (ii) have the Company retain that number of shares of Company
Stock that would satisfy all or a specified portion of the Applicable
Withholding Taxes. The Committee shall have sole discretion to approve
or disapprove any such election.
(e) Notwithstanding anything herein to the contrary,
Options shall always be granted and exercised in such a manner as to
conform to the provisions of Rule 16b-3.
8. Nontransferability of Options. Nonstatutory Stock Options
shall not be transferable except by will or by the laws of descent and
distribution and, to the extent specifically provided in the Incentive
Award, to (a) the Participant's children, step-children, grandchildren,
step-grandchildren (including relationships arising from legal
adoptions) (such individuals are hereinafter referred to as "Immediate
Family Members"); (b) a trust or trusts for the exclusive benefit of
any one or more of the Participant's Immediate Family Members; or (c) a
partnership, limited liability company or other entity, the only
partners, members or interest holders of which are among the
Participant's Immediate Family Members. Incentive Stock Options, by
their terms, shall not be transferable except by will or by the laws of
descent and distribution and shall be exercisable, during the
Participant's lifetime, only by the Participant.
9. Effective Date of the Plan. The effective date of the Plan
is September 19, 1997. The Plan shall be submitted to the shareholders
of the Company for approval. Until (i) the Plan has been approved by
the Company's shareholders and (ii) the requirements of any applicable
Federal or State securities laws have been met, no Incentive Stock
Option shall be exercisable.
10. Termination, Modification, Change. The Board of Directors
or the Committee may at any time withdraw or from time to time amend
the Plan and any Options not theretofore granted. With respect to any
outstanding Option, the Board of Directors or the Committee, with the
consent of the affected holder of an Option, may at any time withdraw
or from time to time amend the Plan and the terms and conditions of any
outstanding Option. Notwithstanding the foregoing, any amendment by
the Board of Directors or the Committee which would increase the number
of Options which may be granted to any individual during a calendar
year, or change the class of persons to whom Options may be granted,
shall be subject to the approval of the stockholders of the Company.
No Option shall be granted under the Plan after September 19, 2007.
11. Change in Capital Structure.
(a) In the event of a stock dividend, stock split or combination
of shares, recapitalization or merger in which the Company is the
surviving corporation or other change in the Company's capital stock
(including, but not limited to, the creation or issuance to
shareholders generally of rights, options or warrants for the purchase
of common stock or preferred stock of the Company), the number and kind
of shares of stock or securities of the Company to be subject to the
Plan and to Options then outstanding or to be granted thereunder, the
maximum number of shares or securities which may be delivered under the
Plan, the exercise price and other relevant provisions shall be
appropriately adjusted by the Committee, whose determination shall be
binding on all persons. If the adjustment would produce fractional
shares with respect to any unexercised Option, the Committee may adjust
appropriately the number of shares covered by the Option so as to
eliminate the fractional shares.
(b) If the Company is a party to an initial public
offering, a consolidation or a merger in which the Company is not the
surviving corporation, a transaction that results in the acquisition of
substantially all of the Company's outstanding stock by a single person
or entity, or a sale or transfer of substantially all of the Company's
assets, the Committee may take such actions with respect to outstanding
Incentive Awards as the Committee deems appropriate.
(c) Notwithstanding anything in the Plan to the contrary,
the Committee may take the foregoing actions without the consent of any
Participant, and the Committee's determination shall be conclusive and
binding on all persons for all purposes.
12. Administration of the Plan. The Plan shall be administered
by the Committee, which shall consist of not less than two members of
the Board, who shall be appointed by the Board. Each member of the
Committee must be a non-employee director within the meaning of Rule
16b-3 and an outside director within the meaning of Code section
162(m). Subject to paragraph (d) below, the Committee shall be the
Compensation Committee unless the Board shall appoint another Committee
to administer the Plan. The Committee shall have general authority to
impose any limitation or condition upon an Incentive Award the
Committee deems appropriate to achieve the objectives of the Incentive
Award and the Plan and, without limitation and in addition to powers
set forth elsewhere in the Plan, shall have the following specific
authority:
(a) The Committee shall have the power and complete
discretion to determine (i) which eligible employees shall
receive Incentive Awards and the nature of each Incentive Award,
(ii) the number of shares of Company Stock to be covered by each
Incentive Award, (iii) whether Options shall be Incentive Stock
Options or Nonstatutory Stock Options, (iv) the Fair Market Value
of Company Stock, (v) the time or times when an Incentive Award
shall be granted, (vi) whether an Incentive Award shall become
vested over a period of time and when it shall be fully vested,
(vii) when Options may be exercised, (viii) whether a Disability
exists, (ix) the manner in which payment will be made upon the
exercise of Options, (x) conditions relating to the length of
time before disposition of Company Stock received upon the
exercise of Options is permitted, (xi) whether to approve a
Participant's election (A) to deliver shares of already owned
Company Stock to satisfy Applicable Withholding Taxes or (B) to
have the Company withhold from the shares to be issued upon the
exercise of a Nonstatutory Stock Option the number of shares
necessary to satisfy Applicable Withholding Taxes, (xii) notice
provisions relating to the sale of Company Stock acquired under
the Plan, (xiii) the consideration to be received by the Company
on exercise of an Option, and (xiv) any additional requirements
relating to Incentive Awards that the Committee deems
appropriate. Notwithstanding the foregoing, no "tandem stock
options" (where two stock options are issued together and the
exercise of one option affects the right to exercise the other
option) may be issued in connection with Incentive Stock Options.
The Committee shall have the power to amend the terms of
previously granted Incentive Awards so long as the terms as
amended are consistent with the terms of the Plan and provided
that the consent of the Participant is obtained with respect to
any amendment that would be detrimental to him or her, except
that such consent will not be required if such amendment is for
the purpose of complying with Rule 16b-3 or any requirement of
the Code applicable to the Incentive Award.
(b) The Committee may adopt rules and regulations for
carrying out the Plan. The interpretation and construction of
any provision of the Plan by the Committee shall be final and
conclusive. The Committee may consult with counsel, who may be
counsel to the Company, and shall not incur any liability for any
action taken in good faith in reliance upon the advice of
counsel.
(c) A majority of the members of the Committee shall
constitute a quorum, and all actions of the Committee shall be
taken by a majority of the members present. Any action may be
taken by a written instrument signed by all of the members, and
any action so taken shall be fully effective as if it had been
taken at a meeting.
(d) The Board from time to time may appoint members
previously appointed and may fill vacancies, however caused, in
the Committee.
13. Grants to Non-Employee Directors. All provisions of the
Plan shall apply to the grant of Incentive Awards to Non-Employee
Directors, except as provided in this section. All Incentive Awards to
Non-Employee Directors will be Nonstatutory Stock Options. With
respect to Incentive Awards to Non-Employee Directors, the Board will
have all of the authority of the Committee under the Plan. The Board
may delegate its authority to the Compensation Committee or another
committee of the Board that is composed solely of Non-Employee
Directors. The provisions for payment of Applicable Withholding Taxes
will not apply to Incentive Awards to Non-Employee Directors.
14. Notice. All notices and other communications required or
permitted to be given under this Plan shall be in writing and shall be
deemed to have been duly given if delivered personally or mailed first
class, postage prepaid, as follows (a) if to the Company - at its
principal business address to the attention of the Treasurer; (b) if to
any Participant - at the last address of the Participant known to the
sender at the time the notice or other communication is sent.
15. Interpretation. The terms of this Plan are subject to all
present and future regulations and rulings of the Secretary of the
Treasury or his or her delegate relating to the qualification of
Incentive Stock Options under the Code. If any provision of the Plan
conflicts with any such regulation or ruling, then that provision of
the Plan shall be void and of no effect. The laws of the State of
Maryland shall govern the terms of this Plan.
<PAGE>
Exhibit 5
September 15, 1998
IGENE Biotechnology, Inc.
9110 Red Branch Road
Columbia, Maryland 21045-2024
Gentlemen:
We have acted as counsel to IGENE Biotechnology, Inc., a Maryland
corporation (the "Company") in connection with the preparation and
filing with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-8 (the "Registration Statement")
relating to the proposed issuance of up to 20,000,000 shares (the
"Shares"), of the Company pursuant to the Company's 1997 Stock Option
Plan (the "Plan").
As such counsel, we have examined copies of the Articles of
Incorporation and Bylaws of the Company, each as amended to the date
hereof, the Registration Statement, the Plan and originals or copies of
such other corporate minutes, records, agreements and other instruments
of the Company, certificates of public officials and other documents
and have made such examinations of law, as we have deemed necessary to
form the basis for the opinion hereinafter expressed. In our
examination of such materials, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals and the conformity to original documents of all copies
submitted to us. As to various questions of fact material to such
opinion, we have relied, to the extent we deemed appropriate, upon
representations, statement and certificates of officers and
representatives of the company and others.
Attorneys involved in the preparation of this opinion are
admitted to practice law in the State of Maryland and we do not purport
to be experts on, or to express any opinion herein concerning, any law
other than the laws of the State of Maryland or the federal laws of the
United States of America.
Based upon and subject to the foregoing, we are of the opinion
that the Shares, when issued by the Board of Directors under the
circumstances contemplated in the Registration Statement and the Plan,
will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. In giving such consent, we do not admit
hereby that we come within the category of persons whose consent is
required under Section 7 of the Act or the Rules and Regulations of the
Commission thereunder.
Very truly yours,
/s/ McGuire, Woods, Battle & Boothe LLP
MCGUIRE WOODS BATTLE & BOOTHE LLP
<PAGE>
Exhibit 23(b)
Consent of Independent Auditors
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 pertaining to the 1997 Stock Option
Plan of IGENE Biotechnology, Inc. of our report dated March 19, 1998
(except as to note 17, which is as of March 31, 1998), with respect to
the financial statements of IGENE Biotechnology, Inc. included in the
annual report (Form 10-KSB) of IGENE Biotechnology, Inc. for the year
ended December 31, 1997.
New York, NY
September 23, 1998
/s/ Berenson & Company LLP
Berenson & Company LLP
