EXHIBIT 2
STOCK PURCHASE AGREEMENT
AGREEMENT dated this 9th day of October, 2001, by and
among Fermtech ("Fermtech"), the persons or entities whose names
are set forth on Schedule A attached hereto (collectively with
Fermtech, the "Stockholders") and Igene Biotechnology, Inc., a
Maryland corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Stockholders own all the issued and
outstanding shares of common stock (the "Shares") of ProBio
Nutraceuticals AS, a joint stock company incorporated under the
laws of the Kingdom of Norway (the "Company"); and
WHEREAS, the Stockholders are desirous of selling to
the Purchaser and the Purchaser is desirous of purchasing from
the Stockholders all the Shares;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants, agreements, representations and warranties
contained herein, the parties hereby agree as follows:
1. Purchase of Shares. Each Stockholder hereby
sells to the Purchaser all of the Shares owned by it, as set
forth on Schedule A attached hereto. Each Stockholder is
herewith delivering to Purchaser stock certificates representing
the Shares purchased by Purchaser, duly endorsed in blank for
transfer or with appropriate assignments separate from the
certificates made out in blank.
2. Purchase Price. The purchase price being paid by
the Purchaser for the Shares owned by the Stockholders other
than Fermtech (the "Other Stockholders") is an aggregate of
$1,200,000.00, of which $200,000 is being paid in cash, with
$1,000,000 to be paid by the issuance of convertible notes of
the Company in the form attached hereto as Schedule B (the
"Notes"). Each Other Stockholder shall receive the amount of
cash and Notes set forth opposite its name on Schedule A. Each
Stockholder acknowledges and understands that different forms
and amounts of consideration are being paid for their Shares and
each Stockholder is not necessarily receiving the same
consideration as other Stockholders. The purchase price being
paid by the Purchaser for the Shares owned by Fermtech is
$200,000.00 in cash, plus 8,000,000 shares of Common Stock of
the Purchaser valued at $.10 per share (the "Purchaser Common
Stock").
3. Representations and Warranties of Fermtech.
Fermtech hereby represents and warrants to the Purchaser as
follows:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
Kingdom of Norway, has full power and authority to own, lease
and operate its properties and assets and to conduct its
business as now being conducted.
(b) Fermtech has full right, power and authority
to enter into this Agreement and to sell, transfer, assign and
deliver the Shares to the Purchaser. Fermtech owns,
beneficially and of record, the Shares as set forth on Schedule
A, free and clear of all liens and encumbrances. The Purchaser
is receiving good, valid and marketable title to the Shares free
and clear of all liens and encumbrances. This Agreement has
been duly and validly executed and delivered by Fermtech and
constitutes the valid and binding obligations of Fermtech
enforceable against Fermtech in accordance with its terms. No
consent of any person or entity is required for Fermtech to
enter into and deliver this Agreement or to consummate this
Agreement nor do the organizational documents of the Company or
any agreement to which Fermtech or the Company is a party
conflict with or restrict the execution and delivery of this
Agreement.
(c) The record and beneficial owners of all of
the issued and outstanding shares of capital stock of the
Company are as set forth on Schedule A hereto. All of the
issued and outstanding shares of such capital stock are validly
issued and outstanding, fully paid and nonassessable. There are
not outstanding any warrants, options or rights (pre-emptive or
othewise) or other securities, plans or agreements which give
the holder or any other person the right to pruchase or
otherwise acquire any shares of capital stock of the Company or
any securities convertible into, exchangeable or exercisable for
shares of such capital stock or under which any such warrant,
otpion, right or security may be issued in the future.
(d) The Company does not have any indebtedness
for borrowed money nor does the Company have any liabilities
(including liabilities for taxes), except for nominal operating
expenses. The Company does not have any obligations or
liabilities to any of the Stockholders and there are no lawsuits
pending or threatened against the Company. The Company is
operating in compliance with all applicable laws. The Company
does not have any subsidiaries and has not made any investments
in any entity. The Company has delivered to the Purchaser its
financial statements at, and for the period ended, August 31,
2001, which financial statements are true, complete and correct.
Since August 31, 2001, there has not been any material change in
the cash, other assets or liabilities of the Company. The
Company owns all its assets, free and clear of liens and
encumbrances. No governmental approval is required to
consummate this Agreement.
(e) Fermtech is acquiring the Purchaser Common
Stock for its own account for investment without any intention
of distribution thereof within the meaning of the Securites Act
of 1933, as amended (the "Securities Act"); Fermtech will not
sell, transfer, assign or pledge any Purchaser Common Stock
except pursuant to an effective registration statement or an
exemption from registration under the Securities Act and the
rules and regulations thereunder and understands that the
certificates for the Purchaser Common Stock will bear a legend
to such effect. Fermtech acknowledges that it is aware that the
Purchaser Common Stock must be held indefinitely unless
subsequently registered under the Securities Act or an exemption
from such registration is available; that although the Purchaser
now makes publicly available the information required by Rule
144 under the Securities Act, it may not be under an obligation
to do so in the future and that any routine sales of any of the
Purchaser Common Stock made in reliance upon Rule 144 under the
Securities Act may be made only in limited quantities in
accordance with the terms and conditons of Rule 144. Fermtech
has knowledge and experience in financial and business matters,
is capable of evaluating the merits and risks of the investment
in the Purchaser and is able to bear the economic risk of such
investment.
4. Representations and Warranties of each Other
Stockholder. Each Other Stockholder severally represents and
warrants to Purchaser with respect to itself and its Shares only
as follows:
(a) Each Other Stockholder has full right, power
and authority to enter into this Agreement and to sell,
transfer, assign and deliver its Shares to the Purchaser. Each
of the Other Stockholders owns, beneficially and of record, the
Shares as set forth opposite its name on Schedule A, free and
clear of all liens and encumbrances. The Purchaser is receiving
good, valid and marketable title to the Shares free and clear of
all liens and encumbrances. This Agreement has been duly and
validly executed and delivered by each Other Stockholder and
constitutes the valid and binding obligations of each Other
Stockholder enforceable against each Other Stockholder in
accordance with its terms. No consent of any person or entity
is required for any Other Stockholder to enter into and deliver
this Agreement or to consummate this Agreement nor does any
agreement to which such Other Stockholder is a party conflict
with or restrict the execution and delivery of this Agreement.
(b) Each Other Stockholder will be acquiring the
Common Stock issuable on conversion of the Note for its own
account for investment without any intention of distribution
thereof within the meaning of the Securities Act; each Other
Stockholder will not sell, transfer, assign or pledge any of
such Common Stock except pursuant to an effective registration
statement or an exemption from registration under the Securities
Act and the rules and regulations thereunder and understands
that the certificates for such Common Stock will bear a legend
to such effect. Each Other Stockholder acknowledges that it is
aware that such Common Stock must be held indefinitely unless
subsequently registered under the Securities Act or an exemption
from such registration is available; that although the Purchaser
now makes publicly available the information required by Rule
144 under the Securities Act, it may not be under an obligation
to do so in the future and that any routine sales of any of such
Common Stock made in reliance upon Rule 144 under the Securities
Act may be made only in limited quantities in accordance with
the terms and conditions of Rule 144.
5. Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Stockholders as
follows:
(a) The Purchaser has full power and authority
to enter into this Agreement and to acquire the Shares.
(b) This Agreement and the Notes have been duly
and validly executed and delivered by the Purchaser and
constitute the legal, valid and binding obligations of the
Purchaser enforceable against the Purchaser in accordance with
their terms.
(c) The Purchaser Common Stock to be issued
pursuant to this Agreement will be duly authorized, validly
issued, fully paid and non-assessable.
(d) The Purchaser is a corporation duly
organized and validly existing under the laws of the State of
Maryland and has the requisite corporate power and authority to
own, lease and operate its assets and to carry on its business
as it is now being conducted.
(e) At June 30, 2001, the authorized capital
stock of the Purchaser consisted of 250,000,000 shares of Common
Stock and 1,312,500 shares of preferred stock. As of June 30,
2001, (i) 62,464,915 shares of Purchaser Common Stock were
issued and outstanding, (ii) 26,405 shares of preferred stock
were issued and outstanding and (iii) 308,742,099 shares of
Purchaser Common Stock were reserved for issuance upon exercise
of outstanding stock options, warrants, notes, preferred stock
and various agreements.
(f) The audited financial statements of the
Purchaser included in the Purchaser's Annual Report on Form 10-K
for the year ended December 31, 2000 and the unaudited financial
statements of the Purchaser included in the Purchaser's
Quarterly Report on Form 10-Q for the period ended June 30, 2001
have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as
may be indicated therein) and fairly present in all material
respects the financial position of the Purchaser as of the dates
thereof and the results of its operations for the periods
reported, subject, in the case of the unaudited financial
statements, to normal year-end adjustments.
6. Miscellaneous.
(a) Each Stockholder, on the one hand, and the
Purchaser, on the other hand, represents and warrants to each
other that no brokerage commissions or finder's fees have been
incurred in connection with the sale of the Shares to Purchaser.
The Purchaser hereby agrees to indemnify and hold harmless the
Stockholders from and against any claims for brokerage
commissions or finder's fees arising by reason of any act of the
Purchaser, and the Stockholders hereby jointly and severally
agree to indemnify and hold harmless the Purchaser from and
against any claim for brokerage commissions or finder's fees
arising by reason of any act of the Stockholders.
(b) All fees and expenses incurred by any party
in connection with this Agreement will be borne by such party
and no part of any Stockholder's fees will be borne by the
Company; provided, however, that up to $10,000 of the
Stockholders fees and expenses in connection with this Agreement
will be paid by the Company.
(c) From time to time on or after the date
hereof, the Stockholders will execute and deliver to Purchaser
such documents and take such action as the Purchaser may
reasonably request in order to more effectively vest in the
Purchaser good title to the Shares being sold by the
Stockholders.
(d) This Agreement shall be binding upon, inure
to the benefit of and be enforceable by the respective heirs,
executors, administrators, legal representatives, successors and
assigns of the parties hereto.
(e) This Agreement contains the entire
understanding of the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings
(whether written or oral) among the parties with respect to its
subject matter. This Agreement may be amended only by a written
instrument duly executed by the parties hereto.
(f) This Agreement may be executed
simultaneously in several counterparts, each of which will be
deemed to be an original, but all of which together will
constitute one and the same instrument.
(g) This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of
the State of Maryland without giving any effect to principles of
conflicts of laws.
(h) All notices hereunder shall be in writing
and shall be deemed to have been given when hand delivered, when
received if sent by telecopier or by same day or overnight
recognized commercial courier service or three days after mailed
by registered or certified mail, addressed to the address below
stated of the party to which notice is given, or to such changed
address as such party may have fixed by notice:
To Purchaser:
Igene Biotechnology, Inc.
0000 Xxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn:
To
Stockholders:
As set forth on Schedule A
provided, however, that any notice of change of address shall be
effective only upon receipt.
(i) All representations, warranties, covenants
and agreements contained in this Agreement shall survive the
execution and delivery of this Agreement.
(j) If at any time prior to three years from the
day hereof, the Purchaser shall propose the filing of a
registration statement under the Securities Act of any equity
securities of the Purchaser, other than a registration statement
on Forms S-8 or S-4 or any equivalent form then in effect, then
the Purchaser shall give the Stockholders not less than 10 days
written notice prior to the proposed date of such proposed
registration and shall include in any registration statement
relating to such securities all or a portion of the shares of
Common Stock of Purchaser then owned by such Stockholders, which
such stockholders shall request, by notice given by such
stockholders to the Company within 10 days after the receipt of
such notice by the Purchaser. Purchaser's obligation to include
such stock in such registration statement shall be subject, at
the option of the Purchaser, to the following further
conditions:
(i) The distribution for the account of the
Stockholders shall be underwritten by the same underwriters who
are underwriting the distribution of the securities for the
account of the Purchaser and/or any other persons whose
securities are covered by such registration statement, and the
Stockholders will enter into an agreement with such underwriters
containing customary provisions no less than those pertaining to
the Purchaser and other selling holders; and
(ii) the number of shares to be included in
the registration statement shall be subject to normal cutback
provisions.
IN WITNESS WHEREOF, each of the parties hereto has
duly executed this Agreement on the date first above written.
Igene Biotechnology, Inc.
By:
/s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman
Fermtech
By:
/s/ Xxxxx Xxxx
Xxxxx Xxxx
/s/ Xxxxxxxx Xxxx Lebesby
Xxxxxxxx Xxxx Lebesby
/s/ Xxxxxx Xxxx
Xxxxxx Xxxx
/s/ Xxxx Xxxx Xxxx
Xxxx Xxxx Xxxx
/s/ Xxxxxx Storvestre
Xxxxxx Storvestre
Vesteralen Naturprodukter AS
By:
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Euro-Pharma AS
By:
/s/ Xxx Xxxxxx
Name:
Title:
/s/ Roar Habberstad
Roar Habberstad
Forskingsparken i Tromso AS
By:
/s/ Xxxx Johan Xxxxxx
Xxxx Xxxxx Xxxxxx
/s/ Xxxxx Xxxx Xxxxxxxx
Xxxxx Ruus Xxxxxxxx
Nord Invest AS
By:
/s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
SCHEDULE A
Name and Address Number of Amount of Amount of
of Stockholders Shares Owned Cash Note
Frederik Janh Lebesby
Xxxxxxxxxxx 00, 0000 Xxxx,
Xxxxxx 10 $3,000
Xxxxxx Xxxx
Xxxxxxxx 000, 0000 Xxxxxx,
Xxxxxx 10 3,000
Xxxx Xxxx Xxxx
Stakkeveien 30 / 104,9018
Xxxxxx, Xxxxxx 00 6,000
Xxxxxx Storvestre
Xxxxx Xxxxxx 0, 0000 Xxxxxxxx,
Xxxxxx 100 30,000
Vesteralen Naturprodukter AS
Xxxxxxxx 000, 0000 Xxxxxxxx,
Xxxxxx 100 30,000
Xxxx Xxxxxxxx
Xxxxxxxxxx 0, 0000 Xxxxxxxx,
Xxxxxx 50 15,000
Xxxx Xxxxxxx
Xxxxxxxxxxx 0, 0000 Xxxxxx,
Xxxxxx 25 $7,500
Euro-Pharma AS
Xxxxxxxx 000, 0000 Xxxxxx,
Xxxxxx 300 90,000
Roar Xxxxxxxxxx
Xxxxxxxxxx 00, 0000 Xxxxxxx,
Xxxxxx 350 105,000
Forskningsparken i Tromso AS
Xxxxxxxxxxxxxxxx, 0000 Xxxxxx,
Xxxxxx 355 106,500
Magne Ruus Xxxxxxxx
Xxxx Xxxxx Xxxx 0, 0000
Xxxxxxxxx, Xxxxxx 1,260 378,000
Nord Invest AS
Xxxxxxxxxxxxxxxx, 0000 Xxxxxx,
Xxxxxx 1,420 113,000 313,000
Fermtech 6,000 $200,000 1,000,000
