SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 5, 1999
IMMUNOMEDICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-12104 61-1009366
(State or Other Jurisdiction (Commission) (IRS Employer
of Incorporation) File Number) Identification No.)
300 American Road, Morris Plains, New Jersey 07950
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (973) 605-8200
(Former name or former address, if changed since last report)
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Item 5. Other Events
IMG Technology, LLC ("IMG"), an 80% owned subsidiary of
Immunomedics, Inc.("Company"), has formed a joint venture with Coulter
Corporation ("Coulter") for the purpose of developing targeted cancer
therapeutics. The joint venture, known as IBC Pharmaceuticals, LLC ("IBC"), was
organized as a Delaware limited liability company.
On March 5, 1999, the Company contributed to IBC, on behalf of
IMG, certain rights to its proprietary humanized antibodies against the cancer
marker carcinoembryonic antigen, which is used in its CEA-Cide(a) therapeutic,
and Coulter contributed to IBC certain rights to its bispecific targeting
technology called the "Affinity Enhancement System" or AES. The Company assigned
its rights pursuant to the terms of a license agreement with IBC dated March 5,
1999 in exchange for the grant to IMG of a 53.28% interest in IBC ("Immunomedics
License Agreement"). Coulter received a 46.72% interest in IBC in exchange for
its contribution.
The license granted to IBC is a worldwide, royalty free,
exclusive license which is limited to the "IBC Field" with respect to the
"Immunomedics Patent Property" and the "Immunomedics Biotechnology Assets," as
those terms are defined in Section 1 of the Immunomedics License Agreement.
Additionally on March 5, 1999, several investors contributed
$3,000,000 to IBC in exchange for a 7% interest in the venture, resulting in a
corresponding reduction of IMG's and Coulter's interests in IBC to 49.55% and
43.45% respectively. Coulter, IMG and the investors entered into an operating
agreement (the "IBC Operating Agreement") which establishes the rights and
obligations of the respective members. Under the terms of the IBC Operating
Agreement, neither IMG nor Coulter may sell any portion of its interest in IBC
without first providing the other with a right of first refusal with respect to
such sale, provided that after a public offering of IBC securities, IMG and
Coulter will be permitted to sell up to 20% of their respective interests in IBC
free of such right of first refusal.
IMG is a Delaware limited liability company owned 80% by the
Company and 20% by Dr. David Goldenberg. Dr. Goldenberg, who is the Chairman of
the Board of the Company, received his interest pursuant to the terms of his
employment agreement with the Company. IMG is intended to be a single purpose
entity, its sole asset being its interest in IBC. Dr. Goldenberg and IMG have
entered into an operating agreement (the "IMG Operating Agreement") which
establishes their relative rights and obligations.
The foregoing summaries of agreements are necessarily
incomplete and selective and are qualified in their entirety by reference to the
agreements summarized, each of which is attached hereto as an exhibit.
At a special meeting of stockholders held on March 19, 1999,
stockholders of the Company authorized the issuance, if necessary, of shares of
common stock in excess of 7,577,617 shares upon conversion of the Series F
Preferred Stock issued or issuable to investors in accordance with the Company's
December 1999 Private Placement. The terms of the Series F Preferred Stock are
more fully set forth in the Proxy Statement dated February 10, 1999 in conection
with the special meeting.
Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit No. Description
10.1 Operating Agreement, dated March 5, 1999, by and among IMG
Technology, LLC, Coulter Corporation and the investors named
therein.
10.2 License Agreement, dated March 5, 1999, by and between
Immunomedics, Inc. and IBC Pharmaceuticals, LLC.
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10.3 Operating Agreement, dated March 5, 1999, by and between
Immunomedics, Inc., IMG Technology, LLC and David M.
Goldenberg.
99.1 Press Release, dated March 8, 1999
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IMMUNOMEDICS, INC.
By:/s/ Robert J. DeLuccia
Robert J. DeLuccia
President and
Chief Executive Officer
Date: March 23, 1999
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Operating Agreement of
IBC Pharmaceuticals, LLC
(a Delaware Limited Liability Company)
PREAMBLE
This Operating Agreement (the "Agreement") of IBC Pharmaceuticals, LLC
(the "Company"), a limited liability company organized pursuant to the Delaware
Act, is entered into and made as of March 5, 1999, by and among the Members.
Capitalized terms used herein and not otherwise defined shall have the
respective meaning set forth for such terms in Article II.
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties herein set forth, the Members agree as follows:
ARTICLE I - FORMATION; BUSINESS
SECTION 1.1 Organization; Business. (a) The Company is a limited
liability company organized pursuant to the provisions of the Delaware Act.
(b) The Company shall engage only in the business of development and
commercialization of medical products. The Company shall have the authority to
do all things necessary or convenient to accomplish its purpose and operate its
business, except to the extent otherwise provided herein or in the Delaware Act.
SECTION 1.2 Management of the Company. (a) The management of the
Company shall be vested in the Board of Managers of the Company as set forth in
Article III.
(b) Unless authorized by the Board of Managers in accordance with this
Agreement, no Member, in such capacity, shall have the authority to act or
purport to act on behalf of or to bind the Company.
SECTION 1.3 Agreement; Inconsistencies with Delaware Act; Reliance on
this Agreement. (a) This Agreement shall be the sole source of agreement of the
Members relating to the formation, governance and operation of the Company, and,
except to the extent a provision of this Agreement is expressly prohibited or
ineffective under the Delaware Act, this Agreement shall govern.
(b) To the extent any provision of this Agreement is prohibited or
ineffective under the Delaware Act, this Agreement shall be considered amended
to the smallest degree possible in order to make such provision effective under
the Delaware Act.
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(c) The Members hereby agree that each Member shall be entitled to rely
on the provisions of this Agreement, and no Member shall be liable to the
Company or to any Member for any action or refusal to act taken in good faith
reliance on the terms of this Agreement. The Members hereby agree that the
duties and obligations imposed on the Members, in their capacity as such, shall
be those set forth in this Agreement, which is intended to govern the
relationship among the Company and the Members.
SECTION 1.4 Name. The name of the Company shall be IBC Pharmaceuticals,
LLC; however, such name may be changed from time to time by the Board of
Managers, and all business of the Company shall be conducted under that name or
such other name or names as may be determined by the Board, but in any case,
only to the extent permitted by applicable law.
SECTION 1.5 Effective Date. The Effective Date of this Agreement is
June 18, 1998, the date of the filing of the Company's Certificate of Formation
with the Secretary of State of the State of Delaware notwithstanding the failure
of any Member to execute and deliver this Agreement until after the Effective
Date.
SECTION 1.6 Term. Unless sooner dissolved in accordance with Article
XII hereof, the Company shall be dissolved and its affairs wound up in
accordance with the Delaware Act and this Agreement on December 31, 2050 unless
such date shall be extended by amendment to this Agreement.
SECTION 1.7 Registered Agent and Office. The registered agent for
service of process on the Company and the Company's registered office shall be
as reflected in the Certificate. The Board of Managers, may, from time to time,
change such registered agent or office in accordance with the Delaware Act. In
the event the registered agent ceases to act as such for any reason or the
registered office shall change, the Board of Managers shall promptly designate a
replacement registered agent or file a notice of change of address, as the case
may be, in accordance with the Delaware Act.
SECTION 1.8 Principal Office. The principal place of business of the
Company (the "Principal Office") shall be 300 American Road, Morris Plains, New
Jersey 07950. At any time and from time to time, the Board of Managers may
change the location of the Principal Office.
SECTION 1.9 Qualification in Other Jurisdictions. The Board of Managers
shall cause the Company to be qualified, formed or registered under assumed or
fictitious names statutes or similar laws in any jurisdiction in which the
Company conducts business and in which such qualification, formation or
registration is required by law or deemed advisable by the Board of Managers.
The Board of Managers shall cause an authorized person within the meaning of the
Delaware Act to execute, deliver and file any certificates (and any amendments
and/or restatements thereof) necessary for the Company to qualify to do business
in a jurisdiction in which the Company may wish to conduct business.
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ARTICLE II - DEFINITIONS
For purposes of this Agreement, unless the context clearly indicates
otherwise, the following terms shall have the following meanings:
SECTION 2.1 Additional Member shall mean a Member, other than an
Initial Member or a Substitute Member, who has acquired an Interest from the
Company.
SECTION 2.2 Additional Capital Contribution shall mean a Capital
Contribution other than the Initial Capital Contribution.
SECTION 2.3 Adjusted Capital Contributions shall mean the Initial
Capital Contributions and Additional Capital Contributions made by a Series B
Preferred Member, decreased by distributions to the Series B Preferred Member
(other than distributions of the Preferred Allocation) of the amount of any
Money and the fair market value of any Property, as such fair market value is
determined by the Board of Managers at the time of distribution, net of
liabilities of the Company assumed by the Member or subject to which the Member
takes such Property within the meaning of Section 752 of the Code.
SECTION 2.4 Admission Agreement shall mean the agreement between an
Additional Member and the Company described in Section 10.3.
SECTION 2.5 Affected Member shall have the meaning set forth for such
term in Section 13.2.
SECTION 2.6 Affiliate of any specified Person shall mean any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person.
SECTION 2.7 Agreement shall have the meaning for such term set forth
in the preamble to this agreement.
SECTION 2.8 Available Cash shall mean the amount, if any, by which the
Company's cash on hand exceeds the Company's current and anticipated cash needs,
including, without limitation, needs for operating expenses, debt service,
acquisitions, reserves, and mandatory distributions, if any, as determined from
time to time by the Board of Managers in its reasonable judgment.
SECTION 2.9 Bankrupt Member shall mean a Member who: (i) is adjudged a
bankrupt or insolvent, or has become the subject of an order for relief, in any
bankruptcy or insolvency proceeding; (ii) files a voluntary petition in
bankruptcy; (iii) makes an assignment for the benefit of creditors; or (iv) has
initiated, either in an original Proceeding or by way of answer in any state
insolvency or receivership proceeding, an action for liquidation arrangement,
composition, readjustment, dissolution, or similar relief.
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SECTION 2.10 Board of Managers or Board shall mean the Board of
Managers of the Company.
SECTION 2.11 Book Adjustments shall mean adjustments with respect to
the Book Value of Company Property for depreciation, depletion, amortization,
and gain or loss, as computed in accordance with Section 1.704-l(b)(2)(iv)(g) of
the Regulations.
SECTION 2.12 Book Value shall mean, (i) with respect to Property
contributed to the Company, the fair market value (as determined by the Board)
of the Property at the time of such contribution as adjusted by Book Adjustments
and, (ii) with respect to Company Property which has been Revalued, the fair
market value (as determined by the Board) of such Company Property as adjusted
by Book Adjustments.
SECTION 2.13 Business Day shall mean any day other than a Saturday,
Sunday or legal holiday observed in the State of New York.
SECTION 2.14 Capital Account shall mean the account maintained for a
Member in accordance with Article VI.
SECTION 2.15 Capital Account Ratio shall mean, with respect to any
Interest held of record by a Member, a fraction (expressed as a percentage) the
numerator of which shall be the balance in the Capital Account associated with
such Interest as of the time in question and the denominator of which shall be
the sum of the balances in the Capital Accounts associated with all the
Interests of all the Members as of such time. To the extent, but only to the
extent, specifically set forth in this Agreement, the calculation of the Capital
Account Ratio shall take into account only the Capital Accounts associated with
the Common Interests, the Series A Preferred Interests or the Series B Preferred
Interests, as the case may be.
SECTION 2.16 Capital Contribution shall mean the amount of any Money
and the fair market value of any Property (other than Money) contributed by the
Member to the capital of the Company, as such fair market value is determined by
the Board of Managers at the time of contribution, net of liabilities assumed by
the Company or subject to which the Company takes such Property within the
meaning of Section 752 of the Code.
SECTION 2.17 Certificate shall mean the Certificate of Formation of the
Company as properly adopted and amended from time to time in accordance herewith
and filed with the Secretary of State of the State of Delaware in accordance
with the Delaware Act.
SECTION 2.18 Code shall mean the Internal Revenue Code of 1986, as
amended from time to time, and, except with respect to references herein to
particular sections of the Code, shall include the Regulations. With respect to
references herein to particular sections of the Code, such references shall be
deemed to refer to any successor provisions thereto of the Code and shall
include the Regulations adopted under such particular sections (or any such
successor provisions thereto).
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SECTION 2.19 Common Member shall mean a Member who holds of record one
or more Common Units.
SECTION 2.20 Common Interest shall mean all of the rights and
obligations of a Common Member hereunder with respect to the Common Units held
of record by such Common Member and the Capital Account associated therewith,
including, without limitation, rights in distributions (liquidating or
otherwise) and allocations of profits, losses, gains, deductions and credits of
the Company as provided herein.
SECTION 2.21 Common Units shall mean the Units representing the Common
Interests.
SECTION 2.22 Company shall mean IBC Pharmaceuticals, LLC, a limited
liability company formed under the laws of the state of Delaware, and any
successor limited liability company thereto.
SECTION 2.23 Company Liability shall mean any enforceable debt or
obligation for which the Company is liable or which is secured by Company
Property.
SECTION 2.24 Company Minimum Gain shall mean an amount determined by
first computing for each Company Nonrecourse Liability any gain the Company
would realize if it disposed of the Company Property subject to that liability
for no consideration other than full satisfaction of the liability, and then
aggregating the separately computed gains. The amount of Company Minimum Gain
includes such minimum gain arising from a conversion, refinancing, or other
change to a debt instrument, only to the extent a Member is allocated a share of
that minimum gain. For any Taxable Year, the net increase or decrease in Company
Minimum Gain is determined by comparing the Company Minimum Gain on the last day
of the immediately preceding Taxable Year with the Minimum Gain on the last day
of the current Taxable Year. Notwithstanding any provision to the contrary
contained herein, Company Minimum Gain and increases and decreases in Company
Minimum Gain are intended to be computed in accordance with Section 704 of the
Code. A Member's share of Company Minimum Gain at the end of any Taxable Year
shall equal the sum of (i) nonrecourse deductions, if any, allocated to that
Member (and to that Member's predecessors in interest) up to that time
(including prior years) and (ii) the distributions made to that Member (and to
that Member's predecessors in interest) up to that time (including prior years)
of proceeds of a nonrecourse liability allocable to an increase in Company
Minimum Gain minus the sum of (x) that Member's (and of that Member's
predecessors in interest) aggregate share of the net decreases in Company
Minimum Gain and (y) that Members (and that Members predecessors in interest)
aggregate share of decreases resulting from Revaluations of Company Property
subject to one or more Company Nonrecourse Liabilities.
SECTION 2.25 Company Nonrecourse Liability shall mean a Company
Liability to the extent that no Member or Related Person, other than the
Company, bears the economic risk of loss (as defined in Section 1.752-2 of the
Regulations) with respect to the liability.
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SECTION 2.26 Company Property shall mean any Property owned by the
Company.
SECTION 2.27 Conversion Adjustment shall mean (i) a weighted average
adjustment (based on all outstanding Series A Preferred Units, Series B
Preferred Units and Common Units) in the event that the Company issues
additional Interests (other than Common Interests sold, granted or otherwise
issued pursuant to the Plan) at a purchase price less than the offering price of
the Series B Preferred Units, and (ii) a proportional adjustment for splits,
recapitalizations and similar transactions.
SECTION 2.28 Current Members shall mean all of the Members of the
Company as of the date hereof, which Members and the number and type of Units
held as of the date hereof are set forth on Exhibit A attached hereto.
SECTION 2.29 Delaware Act shall mean the Delaware Limited Liability
Company Act, as such act may be amended from time to time.
SECTION 2.30 Designation shall mean the written action or actions of
the Board of Managers establishing a class or series of Interest in accordance
herewith. Each such Designation shall be deemed an amendment and supplement to,
and shall become a part of, this Agreement in accordance with Section 5.1.
SECTION 2.31 Director shall mean a member of the Board of Managers.
SECTION 2.32 Disposition (Dispose) shall mean any sale, assignment,
transfer, exchange, mortgage, pledge, grant, hypothecation, or other transfer,
absolute or as security or encumbrance, including dispositions by operation of
law.
SECTION 2.33 Dissociation shall mean any action which causes a Person
to cease to be Member as provided in Article XI hereof.
SECTION 2.34 Dissociated Member shall mean a Person who has ceased to
be Member as a result of Dissociation in accordance with Article XI hereof.
SECTION 2.35 Effective Date shall have the meaning set forth for such
term in Section 1.5.
SECTION 2.36 GAAP shall mean generally accepted accounting principles
(applied consistently) as in effect on the applicable date or during the
applicable period, as the case may be.
SECTION 2.37 Initial Capital Contribution shall have the meaning set
forth for such term in Section 6.1.
SECTION 2.38 Initial Members shall mean those persons identified as the
Initial Members on Exhibit A attached hereto.
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SECTION 2.39 Interest shall mean all of the rights and obligations of a
Member hereunder with respect to the Units held of record by such Member and the
Capital Account associated therewith, including, without limitation, rights in
distributions (liquidating or otherwise) and allocations of profits, losses,
gain", deductions, and credits of the Company as provided herein. The Interests
shall initially consist of the Common Interests, the Series A Preferred
Interests and the Series B Preferred Interests.
SECTION 2.40 Majority in Interest shall mean Interests representing in
excess of 50% of the Units.
SECTION 2.41 Member shall mean any person that holds of record an
Interest in the Company and is admitted as a member of the Company pursuant to
the provisions of this Agreement, in such person's capacity as a member of the
Company. The Members shall consist of the Common Members, the Series A Preferred
Members and the Series B Preferred Members. For purposes of the Delaware Act,
the Common Members, the Series A Preferred Members and the Series B Preferred
Members shall constitute separate classes of Members.
SECTION 2.42 Member Minimum Gain shall mean an amount determined by:
(a) first computing for each Member Nonrecourse Liability any gain the Company
would realize if it disposed of the Company Property subject to that liability
for no consideration other than full satisfaction of the liability, and then (b)
aggregating the separately computed gains. The amount of Member Minimum Gain
includes such minimum gain arising from a conversion, refinancing, or other
change to a debt instrument, only to the extent a Member is allocated a share of
that minimum gain. For any Taxable Year, the net increase or decrease in Member
Minimum Gain is determined by comparing the Member Minimum Gain on the last day
of the immediately preceding Taxable Year with the Minimum Gain on the last day
of the current Taxable Year. Notwithstanding any provision to the contrary
contained herein, Member Minimum Gain and increases and decreases in Member
Minimum Gain are intended to be computed in accordance with Section 704 of the
Code.
SECTION 2.43 Member Nonrecourse Liability shall mean any Company
Liability to the extent the liability is nonrecourse under applicable state law,
and on which a Member or Related Person, other than the Company, bears the
economic risk of loss under Section 1.752-2 of the Regulations.
SECTION 2.44 Money shall mean cash or other legal tender of the United
States, or any obligation that is immediately reducible to such legal tender
without delay or discount. Money shall be considered to have a fair market value
equal to its face amount.
SECTION 2.45 Nonrecourse Liabilities shall mean liabilities that under
applicable law are nonrecourse with respect to the Company, including Company
Nonrecourse Liabilities and Member Nonrecourse Liabilities.
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SECTION 2.46 Organization shall mean a Person other than a natural
person. Organization shall include, without limitation, corporations,
partnerships (both limited and general), joint ventures, limited liability
companies, and unincorporated associations, but the term shall not include joint
tenancies and tenancies by the entirety.
SECTION 2.47 Person shall mean an individual, trust, estate, or any
incorporated or unincorporated organization or entity permitted under the laws
of the State of Delaware to be a member of a limited liability company.
SECTION 2.48 Plan shall mean the IBC Pharmaceuticals, LLC Equity
Incentive Plan, as such plan may from time to time be amended in accordance with
the terms thereof.
SECTION 2.49 Preferred Allocation shall mean for any given year an
amount equal to eight percent (8%) per annum, determined on the basis of a year
of 365 or 366 days, as the case may be, for the actual number of days in the
period for which the Preferred Allocation is being determined, cumulative but
not compounded, of the average daily balance of Adjusted Capital Contributions
of the Series B Preferred Members from time to time during the period to which
the Preferred Allocation relates, commencing on the first date any Series B
Preferred Member is admitted to the Partnership.
SECTION 2.50 Principal Office shall have the meaning set forth for such
term in Section 1.8.
SECTION 2.51 Proceeding shall mean any judicial or administrative
trial, hearing or other activity, civil, criminal or investigative, the result
of which may be that a court, arbitrator, or governmental agency may enter a
judgment, order, decree, or other determination which, if not appealed and
reversed, would be binding upon the Company, a Member or other Person subject to
the jurisdiction of such court, arbitrator, or governmental agency.
SECTION 2.52 Profit or Loss of the Company means an amount equal to the
Company's taxable income or loss under Code ss.703 (a) and Regulation ss.1.703-1
for the Taxable Year, adjusted as follows:
(a) All items of income, gain, loss, or deduction required to be
separately stated pursuant to Code ss.703(a)(1) shall be included;
(b) Tax-exempt income as described in Code ss.705(a)(1)(B) realized by
the Company during such Taxable Year shall be taken into account as if it were
taxable income;
(c) Expenditures of the Company described in Code ss.705(a)(2)(B) for
such year, including items treated under Regulation ss.1.704-l(b)(2)(iv)(i) as
items described in Code ss.705 (a)(2)(B), shall be taken into account as if they
were deductible items;
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(d) With respect to Property (other than Money) which has been
contributed to the capital of the Company, Profit and Loss shall be computed in
accordance with the provisions of Regulation ss.1.704-l(b)(2)(iv)(g) by
computing depreciation, amortization, gain, or loss upon the value (as
determined by the Board) of such property on the books of the Company;
(e) With respect to any Company Property which has been the subject of
a Revaluation pursuant to Section 6.4 or a revaluation event pursuant to Section
6.3, Profit or Loss subsequent to such revaluation shall be determined based
upon the fair market value of such property as determined in such revaluation;
(f) Interest paid on loans made to the Company by a Member, and
salaries, fees, and other compensation paid to any Member shall be treated as
deductible items in computing Profit and Loss.
SECTION 2.53 Property shall mean any property real or personal,
tangible or intangible (including goodwill), including Money, and any legal or
equitable interest in such property, but excluding services and promise. to
perform services in the future.
SECTION 2.54 Qualified Offering shall mean a firmly underwritten public
offering of equity of the Company for a total offering of not less than $15
million (after deduction of underwriters commissions and expenses) or upon the
closing of a rights or similar offering to the holders of the Company's equity
or to any holders of the equity of affiliates of the Company which raises net
proceeds for the Company of not less than $15 million (after deduction of
underwriters commissions and expenses) following which the Company becomes
subject to the reporting requirements of the Securities Exchange Act of 1934, as
amended.
SECTION 2.55 Regulations shall mean, except where the context indicates
otherwise, the permanent, temporary, or proposed and temporary regulations of
the United States Department of the Treasury promulgated under the Internal
Revenue Code of 1986, as amended from time to time, as such regulations may be
lawfully changed from time to time.
SECTION 2.56 Related Person shall mean a person having a relationship
to a Member that is described in Section 1.752-4(b) of the Regulations, or any
successor provision.
SECTION 2.57 Revaluation shall mean the adjustment to the Book Value of
Company Property as provided in Section 6.4.
SECTION 2.58 Revaluation Date shall mean the date on which a
Revaluation Event occurs.
SECTION 2.59 Revaluation Event shall mean (i) the admission of a Member
in accordance with Article X (other than the admission of (a) a Substitute
Member), or (b) a Series B Preferred Member on or prior to March 1, 1999 or such
later date as may be set by the Board of Managers, (ii) a contribution of
Property to the Company by a Member in respect of an Interest (other than a de
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minimis amount), (iii) a liquidating distribution of Property by the Company to
a Member in complete liquidation of such Members Interest, or (iv) the
liquidation of the Company.
SECTION 2.60 Series A Preferred Interest shall mean all of the rights
and obligations of a Series A Preferred Member hereunder with respect to the
Series A Preferred Units held of record by such Series A Preferred Member and
the Capital Account associated therewith, including, without limitation, rights
in distributions (liquidating or otherwise) and allocations of profits, losses,
gains, deductions and credits of the Company as provided herein.
SECTION 2.61 Series B Preferred Interest shall mean all of the rights
and obligations of a Series B Preferred Member hereunder with respect to the
Series B Preferred Units held of record by such Series B Preferred Member and
the Capital Account associated therewith, including, without limitation, rights
in distributions (liquidating or otherwise) and allocations of profits, losses,
gains, deductions and credits of the Company as provided herein.
SECTION 2.62 Series A Preferred Member shall mean a Member who holds of
record one or more Series A Preferred Units.
SECTION 2.63 Series B Preferred Member shall mean a Member who holds of
record one or more Series B Preferred Units.
SECTION 2.64 Series A Preferred Units shall mean the Units representing
the Series A Preferred Interests.
SECTION 2.65 Series B Preferred Units shall mean the Units representing
the Series B Preferred Interests.
SECTION 2.66 Substitute Member shall mean a Person who acquired an
Interest from a Member and who has been admitted as a Member pursuant to this
Agreement.
SECTION 2.67 Taxable Year shall mean the calendar year or such other
taxable year of the Company established by the Board of Managers pursuant to
Section 706 of the Code.
SECTION 2.68 Taxing Jurisdiction shall mean the United States federal
and any state, local, or foreign government that collects tax, interest or
penalties, however designated, on any Members share of the income or gain
attributable to the Company.
SECTION 2.69 Tax Matters Partner shall have the meaning set forth for
such term in Section 8.3.
SECTION 2.70 Term shall have the meaning set forth in Section 1.6.
SECTION 2.71 Units shall have the meaning set forth for such term in
Section 5.1.
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ARTICLE III - BOARD OF MANAGERS
SECTION 3.1 Powers of the Board. (a) The business affairs of the
Company shall be managed by the Board of Managers in accordance with this
Agreement. The Board may exercise all such powers of the Company and do all such
lawful acts and things as are not by statute or this Agreement directed or
required to be exercised or done by the Members.
(b) Except as otherwise provided in this Agreement, the Board of
Managers may delegate any or all of its powers to committees of the Board
established by the Board, and to officers and agents elected or designated by
the Board or a duly constituted committee thereof.
SECTION 3.2 Current Board Members. The Board of Managers of the Company
as of the date hereof consists of five (5) persons identified on Exhibit B
hereto.
SECTION 3.3 Records to be Maintained. The Board of Managers of the
Company shall maintain, or cause to be maintained, the following records at the
Principal Office:
(a) A current list of the full name and last known business or
residence address of each Member and former Member and the Capital Account of
each Member associated with their respective Interests, as of a recent
practicable date;
(b) A copy of the Certificate and all amendments thereto;
(c) Copies of the Company's federal, foreign, state and local income
tax returns and reports, if any, for the seven most recent years;
(d) Copies of this Agreement, including all subsequent amendments
thereto; and
(e) Copies of all financial statements of the Company for the seven
most recent years.
SECTION 3.4 Reports to Members. (a) The Board of Managers shall provide
(or cause the Company to provide) reports at least annually to the Members at
such time (but not later than 90 days after the end of each fiscal year of the
Company, unless good cause is shown) and in such manner as it shall reasonably
determine, which reports shall include (i) a balance sheet of the Company as of
the close of the last completed fiscal year, a statement of income showing the
results of operation of the Company during such year, and a cash flow statement
showing the cash receipts and disbursements of the Company during such year,
each prepared in accordance with GAAP, (ii) a statement showing each Member's
share of Profit or Loss of the Company for such year, and (iii) such other
information as the Board deems appropriate. The Board shall provide (or cause
the Company to provide) all Members with the information returns required by the
Code and the laws of any applicable state in a timely manner.
(b) The Company shall deliver to any holder of Series A Preferred Units
or Series B Preferred Units, or Common Units issued upon conversion of the
Preferred Units, which Units
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represent greater than 5% of the outstanding Units, customary audited annual and
unaudited quarterly financial statements. This provisions shall terminate upon a
Qualified Offering.
ARTICLE IV - RIGHTS AND DUTIES OF MEMBERS
SECTION 4.1 General Rights. All Members shall be entitled to all of the
rights associated with membership in the Company set forth in this Agreement,
including without limitation, the right to vote in accordance herewith on any
matter required hereunder to be submitted to a vote of the Members and the right
to receive distributions of Company Property for such Member's Interest upon
dissolution of the Company as provided in Article XII.
SECTION 4.2 No Right to Withdraw. (a) No Member shall have the right to
withdraw as a Member of the Company, Dispose of its Interest, receive any
distributions of Company Property in respect of such Interest or to have its
Interest redeemed by the Company prior to the dissolution of the Company, even
if such Member Dissociates, except as provided herein. Upon the dissolution of
the Company, the Members' rights to receive distributions of Company Property in
respect of the Interests shall be as set forth in Article XII.
(b) The provisions in this Section with respect to a Member's right to
receive distributions of Company Property in respect of such Member's Interest
upon withdrawal from the Company, Dissociation or dissolution of the Company are
exclusive and no Member shall be entitled to claim any further or different
payments or distributions upon any such withdrawal, Dissociation or dissolution
under Section 18-604 of the Delaware Act or otherwise.
SECTION 4.3 Limited Liability of Members. No Member shall be obligated
personally for any debt, obligation or liability of the Company, whether arising
in contract, tort or otherwise, solely by reason of being a Member. The failure
of the Company to observe any formalities or requirements relating to the
exercise of its powers or management of its business or affairs under this
Agreement or the Delaware Act shall not be grounds for imposing personal
liability on the Members for liabilities of the Company.
SECTION 4.4 Representations and Warranties. Each Current Member
represented and warranted to the Company as of the date of his or its admission
as a Member, and each person who after the date hereof becomes a Member shall,
by executing and delivering to the Company a counterpart signature page hereto,
represent and warrant to the Company and each other Member that: (a) if that
Member is an Organization, that as of the date of its admission as a Member it
is duly organized, validly existing, and in good standing under the law of its
state of organization and that as of such date it has full organizational power
to execute and deliver this Agreement and to perform its obligations hereunder;
(b) that the Member acquired its Interest in the Company for the Member's own
account as an investment and without an intent to distribute the Interest; (c)
the Member was aware that the Interests have not been registered under the
Securities Act of 1933, as amended, or any state securities laws, and may not be
resold or transferred by the Member without appropriate registration or the
availability of an exemption from such requirements and then only upon
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compliance with the terms and conditions set forth in this Agreement; and (d) if
that Member is an Organization, immediately following the acquisition of its
Interest, the value of such Interest, together with the value of all securities
owned by such Member of all issuers which are or would be excluded from the
definition of investment company solely by Section 3(c)(1) of the Investment
Company Act of 1940, as amended (but for the exception set forth in subparagraph
(A) of such Section), would not exceed ten percent (10%) of the value of such
Member's total assets.
ARTICLE V - DESCRIPTION OF INTERESTS
SECTION 5.1 Classes and Series of Interests. (a) The Interests in the
Company shall be initially divided into three classes, the Common Interests, the
Series A Preferred Interests and the Series B Preferred Interests. The holders
of record of the different classes and series of Interests shall have such
rights and obligations associated with such Interests as are provided herein.
Other preferred Interests may be issued from time to time in one or more series
with such relative rights, powers, preferences, limitations and restrictions as
may from time to time be established in a written action or actions (herein
referred to as a "Designation") of the Board of Managers providing for the issue
of such series of preferred Interests as provided in and expressly subject to
the limitations of this Article.
(b) The Interests shall be evidenced by units (the "Units") which shall
not be evidenced by any certificate or other written instrument, but shall only
be evidenced by this Agreement and the holders of record of the Units shall be
as is reflected on the books of the Company.
(c) The total number of Units of all classes of Interests which the
Board of Managers shall have the authority to issue shall be 39,000,000, and
shall consist of: (i) 7,000,000 Series A Preferred Units, all of one class and
series; (ii) 2,000,000 Series B Preferred Units, all of one class and series;
and (iii) 15,000,000 Common Units, all of one class and series; and (iv)
15,000,000 Units, which shall be available to be issued as Common Units (subject
to the limitation contained in Section 5.2), Series A Preferred Units, Series B
Preferred Units or other preferred Units under such other series as the Board of
Managers designates from time to time in accordance herewith), in such amounts
and between such classes and among such series as the Board of Managers or any
authorized committee thereof shall determine from time to time in its sole and
absolute discretion.
SECTION 5.2 Common Units. The granting and issuance of Common Units to
employees, directors, managers and consultants shall be subject to the terms and
conditions contained herein and in the Plan; provided, however, to the extent
any provision of the Plan is deemed to conflict with any provision of this
Agreement, this Agreement shall control. No Common Units shall be granted or
issued to employees, directors, managers and consultants if the effect of such
grant or issuance would be to increase the number of Common Units outstanding to
a number in excess of 10% of the total number of Units of all classes then
outstanding (taking into account any outstanding Common Units issued to
employees, directors, managers and consultants).
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SECTION 5.3 Series A Preferred Units. (a) There shall initially be
7,000,000 Series A Preferred Units representing 92.10% of the total outstanding
Units.
(b) The Series A Preferred Units shall be convertible at the election
of the holder into Common Units on a one-for-one basis, subject to the
Conversion Adjustment.
(c) The Series A Preferred Units shall be automatically converted into
Common Units on a one-for-one basis, subject to the Conversion Adjustment, in
the event that (i) the holders of at least 51% of the then outstanding Series A
Preferred Units consent to such conversion or (ii) upon the closing of a
Qualified Offering.
(d) For so long as at least 70% of the Series A Preferred Units remain
outstanding, consent of the holders in-interest of at least 75% of the Series A
Preferred Units shall be required for any action that:
(i) adversely alters or changes the rights,
preferences or privileges of the Series A Preferred Interests,
(ii) creates (by reclassification or otherwise) any
new class or series of preferred Interests (or other
securities) having rights, preferences or privileges senior to
or on a parity with the Series A Preferred Interests,
(iii) results in the redemption of Interests (other
than pursuant to the Plan or other equity incentive agreements
with service providers giving the Company the right to
repurchase Interests upon the termination of service),
(iv) results in any merger, other corporate
reorganization, sale of control, or any transaction in which
all or substantially all of the assets of the Company are
sold,
(v) amends or waives any provision of the Company's
Certificate of Formation or Operating Agreement relative to
the Series A Preferred Interests,
(vi) increases the authorized size of the Company's
Board of Managers,
(vii) results in any distribution to the Members
other than the Preferred Allocation and distributions to
Members to pay taxes in accordance with Section 7.5, or
(viii) causes the Company to convert to a
corporation.
(e) Holders of Series A Preferred Interests shall have the right in the
event the Company proposes to offer Interests or other securities of the Company
to any person for cash (other than Common Interests issued pursuant to the Plan
or other equity incentive agreements with service providers) to purchase all or
any portion of such Interests or other securities. Such Interests or other
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securities shall be offered to holders of Series A Preferred Interests on a
pro-rata basis. Any Interests or securities not subscribed for by a holder may
be reallocated among the other holders of Series A Preferred Interests. If the
holders of Series A Preferred Interests do not subscribe for all of such
Interests or other securities, that portion that is not purchased may be offered
to other parties on terms no less favorable to the Company. Such preemptive
right will terminate upon a Qualified Offering.
SECTION 5.4 Series B Preferred Units. (a) There shall initially be
600,034 Series B Preferred Units representing 7.90% of the total outstanding
Units.
(b) The holders of Series B Preferred Units shall be entitled to the
Preferred Allocation as provided in Section 2.49.
(c) The Series B Preferred Units shall be convertible at the election
of the holder into Common Units on a one-for-one basis, subject to the
Conversion Adjustment.
(d) The Series B Preferred Units shall be automatically converted into
Common Units on a one-for-one basis, subject to the Conversion Adjustment, in
the event that (i) the holders of at least 51% of the then outstanding Series B
Preferred Units consent to such conversion or (ii) upon the closing of a
Qualified Offering.
(e) For so long as at least 75% of the Series B Preferred Units remain
outstanding, consent of the holders of at least 51% in-interest of the Series B
Preferred Units shall be required for any action that:
(i) adversely alters or changes the rights,
preferences or privileges of the Series B Preferred Interests,
or
(ii) creates (by reclassification or otherwise) any
new class or series of Interests having rights, preferences or
privileges senior to or on a parity with the Series B
Preferred Interests.
SECTION 5.5 Other Units. (a) Authority is hereby expressly granted to
the Board of Managers, subject to the provisions of this Agreement and the
approval of the Series A Preferred Interests and the Series B Preferred
Interests in accordance with Section 5.3 and Section 5.4, respectively, to
authorize the issuance of one or more series or classes of Interests and to
establish each such series by a written action or actions (including without
limitation an amendment to this Agreement) providing for the issue of such
series.
SECTION 5.6 Preferred Allocation. (a) To the extent provided in
subsection (b) of this Section, there shall accumulate with respect to each
outstanding Series B Preferred Unit, in preference to any allocation to the
Series A Preferred Interests and the Common Interests, an annual amount equal to
the Preferred Allocation.
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(b) (i) The Preferred Allocation with respect to the outstanding Series
B Preferred Units held of record on December 31 of such year shall accumulate as
of such date, whether or not there shall be (at the time such amounts accumulate
or at any other time) Profit sufficient to make an allocation equal to such
amounts to the Capital Accounts of the Preferred Members in accordance with
Section VII (due to the allocations of profits losses contained therein) and
whether or not the distribution of property in an amount equal to such amounts
shall have been authorized by the Board of Managers or permitted hereunder.
Accumulated and undistributed Preferred Allocation shall not bear interest.
(c) Profit in an amount equal to the Preferred Allocation shall be
allocated to the Capital Accounts of the Series B Members only to the extent and
as provided in Section 7.1, and property in an amount equal to the Preferred
Allocation shall be distributed to the Series B Preferred Members only to the
extent and as provided in Section 7.5.
SECTION 5.7 Voting. (a) Except as otherwise expressly provided in this
Agreement or the Designation with respect to any class or series of Interests,
(i) the holders of Units shall have full voting rights and powers with respect
to all matters required hereunder to be submitted to the vote, or which requires
the consent, of the Members and each Unit shall be entitled to one vote on all
such matters, and (ii) the Common Units, the Series A Preferred Units, the
Series B Preferred Units, and all other classes or series of Units shall vote
together as a single class on all such matters.
SECTION 5.8 Purchase of Interests by the Company. The Board of Managers
shall not, unless consented to by the holders of Series A Preferred Interests in
accordance with Section 5.3(d), purchase, redeem or otherwise acquire any
Interests. Notwithstanding the preceding sentence and Section 5.3(d), if the
Board of Managers in its reasonable judgment determines that, for the purpose of
maintaining for the Company an exemption from the registration requirements of
the Investment Company Act of 1940, as amended, the Company should purchase,
redeem or otherwise acquire Interests from any Member or Members, the Company
may purchase, redeem or otherwise acquire such Interests from such Member or
Members, on such terms and conditions as the Board shall reasonably determine,
to the extent and in the manner (which need not be pro rata) necessary or
advisable to maintain such exemption.
SECTION 5.9 Status of Unit Redeemed, Transferred or Dissociated. (a)
All Units redeemed, purchased or otherwise acquired by the Company shall be
canceled and thereupon restored to the status of authorized but unissued Units.
(b) All Units held by persons who are not Members, whether through
Dissociation or otherwise, shall not be deemed outstanding for purpose of any
vote, consent or other action of the Members required or permitted under the
Delaware Act or this Agreement.
SECTION 5.10 Preemptive and Appraisal Rights. Except with respect to
the Series A Preferred Interests pursuant to Section 5.3(e), no Member shall be
entitled as a matter of right to subscribe for or purchase, or have any
preemptive right with respect to, any part of any new or additional issuance of
Units of any class or series whatsoever, or of securities convertible into any
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Units of any class or series whatsoever, whether now or hereafter authorized and
whether issued for cash or other consideration or by way of distribution. No
Member shall have any appraisal rights under Section 18-210 of the Delaware Act
or otherwise.
SECTION 5.11 Persons Deemed Members. The Company may treat the Person
in whose name any Interest shall be registered on the books and records of the
Company as a Member and the sole holder of such Interest for purposes of
receiving distributions and for all other purposes whatsoever and, accordingly,
shall not be bound to recognize any equitable or other claims to or interest in
such Interest on the part of any other Person, whether or not the Company shall
have actual or other notice thereof.
ARTICLE VI - CONTRIBUTIONS AND CAPITAL ACCOUNTS
SECTION 6.1 Initial Capital Contributions. (a) As of the Effective
Date, each Initial Member is deemed to have made the Initial Capital
Contribution described for that Member on Exhibit A.
(b) Except to the extent expressly agreed to in writing by the Company,
no interest shall accrue at any time on any contribution to the capital of the
Company or on any Members Capital Account. No Member shall have the right to
Dispose of its Interest, except to the extent provided in Section 9.1, or be
repaid any contribution or any part of such Member's Capital Account, except to
the extent provided in Article VII (relating to distributions) and Section 12.3
(relating to dissolution).
(c) Each Additional Member shall make the contribution, if any, and
shall perform any commitment described in the Admission Agreement entered into
between the Company and such Additional Member. The value of the Additional
Members contribution and the time for making such contribution shall be set
forth in such Admission Agreement.
SECTION 6.2 Maintenance of Capital Accounts. (a) The Company shall
establish and maintain a separate Capital Account for each Member. The amount
credited to the Capital Accounts of the Initial Members as of the Effective Date
is the respective amounts set forth under the column "Value of Contribution" on
Exhibit A hereto. Each Additional Member's Capital Account shall initially equal
the fair market value (as such fair market value is determined by the Board at
the time of contribution), net of liabilities assumed by the Company, of the
Property contributed by such Member to the capital of the Company for such
Member's Interest.
(b) Each Member's Capital Account shall be increased by (i) the amount
of any additional Money contributed by the Member to the capital of the Company,
(ii) the fair market value of any additional Property (other than Money)
contributed by the Member to the capital of the Company, as such fair market
value is determined by the Board of Managers at the time of contribution, net of
liabilities assumed by the Company or subject to which the Company takes such
Property within the meaning of Section 752 of the Code, and (iii) the Member's
share of Profits as determined in accordance with Article VII.
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(c) Each Member's Capital Account shall be decreased by (i) the amount
of any Money distributed to the Member by the Company, (ii) the fair market
value of any Property distributed to the Member, as such fair market value is
determined by the Board of Managers at the time of distribution, net of
liabilities of the Company assumed by the Member or subject to which the Member
takes such Property within the meaning of Section 752 of the Code, and (iii) the
Member's share of Losses as determined in accordance with Article VII.
SECTION 6.3 Adjustments to Capital Accounts upon Distribution of
Assets. If the Company at any time distributes any Company Property (other than
Money) in-kind to any Member, the Capital Account of each Member shall be
adjusted, to the extent not previously adjusted pursuant to Section 6.4, to
account for that Member's allocable share (as determined in accordance with
Article VII below) of the Profit or Loss that would have been realized by the
Company had it sold the assets that were distributed at their respective fair
market values immediately prior to their distribution.
SECTION 6.4 Revaluation of Company Property. The Capital Accounts of
the Members shall be increased or decreased to reflect a Revaluation of Company
Property (including intangible assets such as goodwill) on the Company's books
upon the occurrence of a Revaluation Event. Upon such Revaluation: (i) the Book
Value of all Company Property shall be adjusted based on the fair market value
(as determined by the Board) of such Company Property (taking into account
Section 7701(g) of the Code) on the Revaluation Date; and (ii) the unrealized
income, gain, loss, or deduction with respect to such Company Property (that has
not been reflected in the Capital Accounts previously) shall be allocated among
the Members as if there were a taxable disposition of such Company property for
such fair market value on the Revaluation Date. In the event the Book Value of
any Company Property is adjusted pursuant to this Section, subsequent
allocations of income, gain, loss and deduction for purposes of Federal, state
and local taxes with respect to such property shall take account of any
variation between the adjusted basis of such property for Federal income tax
purposes and its Book Value in the same manner as under Code Section 704(c).
SECTION 6.5 Transfer of Capital Accounts. In the event of a sale,
exchange or other transfer of some or all of an Interest and only to the extent
such sale or exchange is permitted hereunder, the Capital Account of the Member
transferring such Interest (and the Preferred Allocation, if not reflected in
the Capital Account) shall become the Capital Account (and Preferred Allocation)
of the transferee to the extent it relates to the portion of the Interest
transferred. Such transferee shall be deemed a Member only in accordance with
Article X.
SECTION 6.6 Compliance with Section 704(b) of the Code. The provisions
of this Article as they relate to the maintenance of Capital Accounts are
intended, and shall be construed, and, if necessary, modified, to cause the
allocations of profits, losses, income, gain and credits pursuant to Article VII
to have substantial economic effect under the Regulations promulgated under
Section 704(b) of the Code, in light of the distributions made pursuant to
Article VII and the contributions to the Company made pursuant to this Article.
Notwithstanding anything herein to the contrary, this Agreement shall not be
construed as creating a deficit restoration obligation or to otherwise
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personally obligate any Member to make a contribution in excess of the
contribution of the Member required by Section 6.1.
ARTICLE VII - ALLOCATIONS AND DISTRIBUTIONS
SECTION 7.1 Allocations of Profit and Loss. Except as may be required
by Section 704(c) of the Code and Sections 7.2, 7.3, and 7.4 of this Article:
(a) the Company's Loss for each Taxable Year shall be allocated to the
Capital Accounts of the Members, as of the close of business for such year, as
follows:
(i) First, to the holders of the Series B Preferred Interests
(on a per Unit basis) until the Capital Accounts in respect of all such
Interests are reduced to zero;
(ii) Second, among the holders of the Series A Preferred
Interests (on a per Unit basis) until the Capital Accounts in respect of all the
Series A Preferred Interests are reduced to zero;
(iii) Third, among the holders of the Common Interests (on a
per Unit basis) until the Capital Accounts in respect of all the Common
Interests are reduced to zero; and
(iv) Lastly, all of the remaining Loss shall be allocated
among the holders of the Common, Series A Preferred and Series B Preferred
Interests (on a per Unit basis without regard to class or series).
(b) the Company's Profit for each Taxable Year shall be allocated to
the Capital Accounts of the Members, as of the close of business for such year,
as follows:
(i) First, to any Members with negative Capital Accounts (on a
per Unit basis) until such Members' Capital Accounts equal zero;
(ii) Second, to the holders of the Series B Preferred
Interests (on a per Unit basis) in an amount equal to the excess of (x) the
amount of all Losses allocated to such Interests from the date of the
establishment of the Capital Accounts in respect of such Interests through the
close of business for such Taxable Year pursuant to clause (a)(i) above over (y)
the amount of Profit allocated to such holders in respect of such accounts
pursuant to this clause (b)(ii) for all prior Taxable Years;
(iii) Third, to the holders of the Series A Preferred
Interests (on a per Unit basis) in an amount equal to the excess of (x) the
amount of all Losses allocated to such Interests from the date of the
establishment of the Capital Accounts in respect of such Interests through the
close of business for such Taxable Year pursuant to clause (a)(ii) above over
(y) the amount of Profit allocated to such holders in respect of such accounts
pursuant to this clause (b)(iii) for all prior Taxable Years;
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(iv) Fourth, to the holders of the Common Interests (on a per
Unit basis) in an amount equal to the excess of (x) the amount of all Losses
allocated to such Interests from the date of the establishment of the Capital
Accounts in respect of such Interests through the close of business for such
Taxable Year pursuant to clause (a)(iii) above over (y) the amount of Profit
allocated to such holders in respect of such accounts pursuant to this clause
(b)(iv) for all prior Taxable Years;
(v) Fifth, to the holders of the Series B Preferred Interests
(on a per Unit basis) in an amount equal to the excess of (x) all Preference
Allocations accumulated with respect to such Interests through the close of
business for such Taxable Year pursuant to Article V, over (y) all Preference
Allocations allocated to such holders in respect of such Series B Preferred
Interests for all prior Taxable Years pursuant to this clause (v);
(vi) Lastly, all remaining Profit shall be allocated to the
Common, Series A Preferred and Series B Preferred Members (on a per Unit basis
without regard to class or series).
SECTION 7.2 Company Minimum Gain Chargeback. If there is a net decrease
in Company Minimum Gain for a Taxable Year, each Member shall be allocated items
of income and gain for that Taxable Year equal to that Person's share of the net
decrease in Company Minimum Gain. A Member shall not be subject to the Company
Minimum Gain chargeback requirement of this Section to the extent the Member's
share of the net decrease in Company Minimum Gain is caused by a guarantee,
refinancing, or other change in the debt instrument causing it to become
partially or wholly a Recourse Liability or a Member Nonrecourse Liability, and
the Member bears the economic risk of loss (within the meaning of Section
1.752-2 of the Regulations) for the newly guaranteed, refinanced, or otherwise
changed liability.
SECTION 7.3 Member Minimum Gain Chargeback. If during a Taxable Year
there is a net decrease in Member Minimum Gain, any Member with a share of that
Member Minimum Gain as of the beginning of that Taxable Year shall be allocated
items of income and gain for that Taxable Year (and, if necessary, for
succeeding Taxable Years) equal to that Members share of the net decrease in the
Company Minimum Gain.
SECTION 7.4 Qualified Income Offset. Notwithstanding any provision of
this Agreement to the contrary, in the event that a deficit in a Member's
Capital Account is created or increased (taking into account any allocations,
adjustments, or distributions described in Sections 1.704-l(b)(2)(ii)(d)(4),
(5), or (6) of the Regulations) in excess of such Member's share of Company
Minimum Gain and Member Minimum Gain, plus the amounts, if any, that the Member
is obligated to restore to the Company, such Member shall be allocated items of
income and gain (consisting of a pro rata portion of each item of income and
gain for such year) in an amount and manner sufficient to offset such deficit as
quickly as possible.
SECTION 7.5 Interim Distributions. Except as otherwise provided in and
subject to subsection (b) of this Section, to the extent of the Available Cash
the Board of Managers may, and in the case of clauses (a) and (b) of this
Section 7.4 shall, authorize the following distributions of Company Property to
the Members on a per Unit basis:
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(a) Within a reasonable time after the end of each Taxable Year, the
Company shall distribute to each Member, without regard to class or series, cash
in an amount intended to provide each such Member with funds for the payment of
federal income taxes resulting from the allocations made pursuant to Article VII
to such Member for such Taxable Year; provided, however, any cash distribution
to be paid to any Member pursuant to this clause may, at the discretion of the
Board, be reduced by the amount of any cash distributions paid to such Member
during or in respect of such Taxable Year pursuant to this Section 7.5 other
than pursuant to this subsection (a). Any distributions paid pursuant to this
clause shall be based upon a notional tax rate determined by the Board and
applied to all such profit allocations regardless of the tax status of the
individual Members, and any such distributions may, at the discretion of the
Board, be taken into account for purposes of this Section when determining the
amount of undistributed Preferred Allocations.
(b) Within a reasonable time after the end of each Taxable Year, the
Company shall distribute to each Series B Preferred Member, Money or other
Property in an amount up to all accumulated and undistributed Preferred
Allocations.
(c) Provided that Money or other Property in an amount equal to all
accumulated and undistributed Preferred Allocations has been distributed to the
Series B Preferred Members, the Company may distribute to each Member (on a per
Unit basis, without regard to class or series), such additional Cash or other
Property as the Board determines in its sole discretion.
ARTICLE VIII - TAXES
SECTION 8.1 Elections. The Board of Managers may, in its discretion,
make or refrain from making any tax elections for the Company allowed under the
Code or the tax laws of any state or other jurisdiction that it deems necessary
or advisable, including, without limitation, any election under Section 754 of
the Code or any successor provision.
SECTION 8.2 Taxes of Taxing Jurisdictions. To the extent that the laws
of any Taxing Jurisdiction requires, the Company may withhold and pay over to
such Taxing Jurisdiction the amount of any tax, penalty or interest required to
be withheld and paid over under such laws with respect to items of income, gain
and any other amounts allocable to any Member hereunder. Any such payments shall
be treated as a distribution for purposes of Article VII.
SECTION 8.3 Tax Matters Partner. IMG Technology, L.L.C. Technology, LLC
is hereby designated as the "tax matters partner" of the Company pursuant to
Section 6231(a)(7) of the Code. The Board of Managers may, in its discretion
from time to time, designate any other Member as the "Tax Matters Partner",
provided such Member agrees to such designation. The Board of Managers is
specifically directed and authorized to take whatever steps it deems necessary
or desirable to perfect each such designation. The Tax Matters Partner shall
take such action as many be necessary to cause each other Member to become a
notice partner within the meaning of Section 6223 of the Code. Any Member who is
designated tax matters partner may not take any action contemplated by Sections
6222 through 6232 of the Code without the consent of the Board of Managers.
Expenses incurred by the Tax Matters Partner, in its capacity as such, will be
borne by the Company.
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SECTION 8.4 Method of Accounting. The records of the Company shall be
maintained on the accrual method of accounting.
SECTION 8.5 Company Tax Returns. The Board of Managers shall cause to
be prepared and timely filed all tax returns required to be filed for the
Company.
SECTION 8.6 Tax Reports. The Board of Managers shall, as promptly as
practicable and in any event within 90 days after the end of each fiscal year,
cause to be prepared and mailed to each Member of record federal income tax form
K-1 and any other forms which are necessary or advisable.
SECTION 8.7 Taxation as Partnership. The Members recognize that the
Company will be treated as a partnership for U.S. federal income tax purposes,
and the Board of Managers shall operate the Company in such a manner as will
preserve its treatment as a partnership for U.S. federal income tax purposes.
ARTICLE IX - DISPOSITION OF INTERESTS
SECTION 9.1 Dispositions. (a) No Member may dispose of all or any
portion of that Member's Interest unless such Disposition complies with
subsection (b) of this Section and unless:
(i) such disposition, alone or when combined with other transactions,
would not result in a termination of the Company within the meaning of Section
708 of the Code;
(ii) the Company upon request receives an opinion of counsel
satisfactory to the Board of Managers that such disposition is subject to an
effective registration under, or exempt from the registration requirements of,
the applicable state and federal securities laws;
(iii) the Company receives from the transferee of such Interest the
information and agreements that the Board of Managers may reasonably require,
including but not limited to any taxpayer identification number and any
agreement that may be required by any Taxing Jurisdiction; and
(iv) to the extent such Disposition is of Common Units issued pursuant
to the Plan, two years have elapsed since the date of grant of such Units under
the Plan, unless such Disposition is a gift or bequest for no consideration.
(b) Subject to the requirements set forth in subsection (a) of this
Section, a Member may not Dispose of all or any portion of that Member's Units
except to an Affiliate of such Member, unless such Disposition is consented to
by Members holding of record not less than two-thirds of the then outstanding
Units (not taking into account the Units to be disposed of or any Common Units
issued pursuant to the Plan), subject to the following exceptions:
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(i) Series B Preferred Units: Until such time as there shall be a
Qualified Offering, (x) a Disposition by a holder of a Series B Preferred Unit
(or, if converted into Common Unit, such Common Unit) shall be subject to a
right of first refusal by the Company pursuant to Section 9.1(b)(iii), and (y) a
holder of a Series B Unit shall have a right of co-sale with respect to sales of
Units by holders of Series A Units.
(ii) Series A Preferred Units: Coulter Corporation and IMG Technology,
L.L.C. shall have a right of first refusal on the Units held by the other party
pursuant to Section 9.1(b)(iii), which rights shall not expire upon a Qualified
Offering; provided, however, that up to 20% of each party's Preferred Units (or
upon conversion, Common Units) (in the aggregate) may be sold, assigned,
transferred or otherwise conveyed by each party without restriction.
(iii) Right of First Refusal. (a) The right of first refusal in this
Section 9.1(b)(iii) shall be solely for the benefit of the Company, Coulter
Corporation and IMG Technology, L.L.C.; (b) subject to the restrictions set
forth in this Section 9.1 if any of the Coulter Corporation, IMG Technology,
L.L.C. or a holder of Series B Preferred Units wishes to transfer any of its
Units (such person or entity wishing to transfer its Units being the "Offering
Unitholder") to any person or entity other than a Permitted Transferee (such
non-Permitted Transferee being hereafter referred to as a "Third Party"), such
Offering Unitholder shall deliver a written notice (an "Offer Notice") to the
Company, (in case the Offering Unitholder is a holder of Series B Preferred
Units), or to Coulter Corporation or IMG Technology, L.L.C., (in case the
Offering Holder is, respectively, IMG Technology, L.L.C. or the Coulter
Corporation), (the "Remaining Holder"). The Offer Notice will describe in
reasonable detail the number of Units being offered, the purchase price
requested and all other material terms and conditions of the proposed transfer.
For purposes of this Section 9.1, a Permitted Transferee shall mean, to
the extent a transferee agrees to be bound by Section 9.1 hereof, (a) any
subscriber to the Operating Agreement (a "Holder"), (b) the guardian,
conservator, heir or estate of any Holder, (c) any corporation, partnership or
limited liability company all of the outstanding securities and other interests
of which are owned by a Holder, Holders and/or one or more members of the
immediate family of one or more Holders, (d) any individuals or corporations who
own directly or indirectly, all of the outstanding securities and other
interests of a Holder or the guardian, conservator or estate of any such
individuals as of the date hereof; (e) any trust, all of the beneficiaries of
which are a Holder or members of his immediate family, (f) any affiliate
controlled by, or under common control with, a Holder or members of such
Holder's immediate family, or (g) an immediate member of such Holder's family.
(b) Upon receipt of an Offer Notice from an Offering Unitholder, the
Remaining Holder shall have the option to purchase all, but not less than all,
of the Units being offered by giving written notice within ten business days
after receipt of the Offer Notice. The Remaining Holder shall notify the
Offering Unitholder and the Seller whether it desires to purchase the Units
being offered, and shall consummate such purchase within 30 days after receipt
of the Offer Notice.
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(c) If the Remaining Holder does not elect to purchase all of the
Units, or the purchase of the Units is not consummated within 30 days after
receipt of the Offer Notice, then the Offering Unitholder shall be free to sell
the Units to any third party on terms no less favorable to the Offering
Unitholder.
SECTION 9.2 Rights of Transferees. Until such time (if at all) as such
person becomes a Member in accordance with Article X, an assignee or other
transferee of an Interest shall have no rights hereunder or with respect to the
business and affairs of the Company or to become a Member.
SECTION 9.3 Dispositions not in Compliance Void. Any Disposition or
attempted Disposition of an Interest, or any part thereof, not in compliance
with this Article shall be, and is declared to be, null and void ab initio.
ARTICLE X - ADMISSION OF SUBSTITUTE
AND ADDITIONAL MEMBERS
SECTION 10.1 Admission of Substitute Members. (a) An assignee or other
transferee of all or any portion of an Interest shall be admitted as a
Substitute Member and shall have all the rights, and assume all of the
obligations, with respect to such Interest (including all the rights and
obligations of the Member who assigned such Interest with respect thereto) only
(i) if such transfer complies in all respects with Section 9.1, (ii) upon
compliance with the procedures for admission contained in Section 10.3 and (iii)
upon receipt by the Company of written authorization from the Member
transferring such Interest (with an appropriate signature guarantee, if
requested by the Company).
(b) The admission of a Substitute Member shall not release the Member
who disposed of such Interest (or any part thereof), nor release any subsequent
transferee of such Interest, from any liability to the Company in respect of
such Interest that may have existed prior to such admission.
SECTION 10.2 Admission of Additional Members. Subject to Article V, the
Board of Managers shall have the authority to admit Additional Members and to
determine the capital contributions of such Members and to issue such Interests
in such classes or series and in such number of Units as the Board of Managers
shall deem necessary or advisable.
SECTION 10.3 Procedure for Admission. (a) No Person shall be admitted
as a Substitute Member or Additional Member until (i) such Person and the
Company execute an agreement (an "Admission Agreement") whereby such Person (A)
agrees to the terms and conditions of this Agreement, as such agreement may be
amended from time to time in accordance herewith, and to such other terms and
conditions as the Board shall reasonably require in connection with such
admission (provided such other terms and conditions are not inconsistent
herewith), and (B) in the case of an Additional Member, agrees to make such
capital contribution as the Board of Managers shall determine and (ii) in the
case of an Additional Member, such Person has made the capital contribution
required to be made pursuant to such Admission Agreement.
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(b) The Company will reflect the admission of a Member pursuant to this
Article in the records of the Company as soon as is reasonably practicable after
satisfaction of the conditions set forth in this Article and the conditions, if
any, set forth in the Admission Agreement to which such Person is a party.
(c) For purposes of this Agreement, no person shall be deemed a Member
until such time as such person is reflected as a Member on records of the
Company as provided for in subsection (b) of this Section.
ARTICLE XI - DISSOCIATION OF A MEMBER
SECTION 11.1 Dissociation. (a) A Person shall cease to be a Member
upon the happening of any of the following events:
(i) the Disposition by a Member of his entire Interest;
(ii) the Member becoming a Bankrupt Member;
(iii) in the case of a Member who is a natural person, the death of the
Member or the entry of an order by a court of competent jurisdiction
adjudicating the Member incompetent to manage such Member's estate;
(iv) in the case of a Member that is a trust, the termination of the
trust (but not merely the substitution of a new trustee);
(v) in the case of a Member that is an Organization, the dissolution,
winding-up, liquidation or merger of such Organization; or
(vi) in the case of a Member that is an estate, the distribution by the
fiduciary of the estate of its entire Interest in the Company.
(b) Each Dissociated Member shall promptly notify the Company in
writing of the date and the relevant facts surrounding his or its Dissociation.
SECTION 11.2 Effect of Certain Dissociations. Upon the Dissociation of
a Member other than pursuant to Section 11.1(a)(i), and if the Company is not
thereby dissolved as provided in Section 12.1(c) the transferee or other
successor in interest to the Dissociated Members Interest may, to the extent
(and only to the extent) required by Section 18-604 of the Delaware Act,
exercise all of such Dissociated Member's rights hereunder as if such
Dissociated Member has not Dissociated and, upon compliance with Article X, such
person shall be admitted as a Member.
SECTION 11.3 Damages. The provision set forth herein shall not effect
any claim for damages the Company may have against the Dissociated Member if
such Dissociation is in violation of this Agreement. The Company shall have the
right to offset any payments due under this
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Agreement in respect of a Dissociated Member's Interest (whether payable to the
Dissociated Member or any successor in interest) by any damages that the Company
may incur as a result of the Dissociation of such Member in contravention of
this Agreement.
ARTICLE XII - DISSOLUTION AND WINDING-UP
SECTION 12.1 Dissolution. The Company shall be dissolved and its
affairs wound up, upon the first to occur of the following events:
(a) the expiration of the Term;
(b) the written consent of all of the Members;
(c) the entry of a decree of judicial dissolution of the Company under
the Section 18-702 of the Delaware Act (or any successor provision).
SECTION 12.2 Notice of Dissolution. Upon the dissolution of the
Company, the Company shall promptly notify the Members of such dissolution.
SECTION 12.3 Distribution of Proceeds Upon Dissolution. Upon
dissolution of the Company, the Board of Managers shall immediately commence to
wind-up the Company's affairs; provided, however, that a reasonable time shall
be allowed for the orderly liquidation of the assets of the Company and the
satisfaction of liabilities to creditors so as to enable the Members to minimize
the normal losses attendant upon a liquidation. The proceeds of liquidation,
after adequate provision has been made for the satisfaction of all liabilities
of the Company (other than liabilities to Members in their capacity as such),
shall be distributed, to the Members, as realized:
(a) First, to the holders of the Series B Preferred Interests, an
amount equal to the Series B Preferred Interests respective Initial Capital
Contributions plus undistributed Preferred Allocations, if any (but in no event
in an amount in excess of a holder's Capital Account).
(b) Second, to the holders of the Series A Preferred Interests, an
amount equal to the Series A Preferred Interests respective Initial Capital
Contributions (but in no event in an amount in excess of a holder's Capital
Account).
(c) Third, to the holders of the Series A Preferred Interests, the
Series B Preferred Interests and the Common Interests, pro rata, in accordance
with and to the extent of their remaining respective Capital Accounts.
(d) Last, to the holders of the Series A Preferred Interests, the
Series B Preferred Interests and the Common Interests, on a per Unit basis
without regard to class or series.
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SECTION 12.4 Termination. The winding-up of the Company shall be
completed and the Company shall terminate when (i) all debts, liabilities, and
obligations of the Company have been paid and discharged or reasonably adequate
provision therefor has been made, (ii) all of the remaining property and assets
of the Company have been distributed to the Members in accordance with this
Article, and (iii) a certificate of dissolution shall be delivered to the
Secretary of State of the State of Delaware in the manner required by the
Delaware Act.
ARTICLE XIII - MISCELLANEOUS PROVISIONS
SECTION 13.1 Conversion to a Corporation. Upon approval by the Board of
Managers and the Series A Preferred Interests pursuant to Section 5.3, the
Company shall convert from a limited liability company to a corporation. Such
conversion may be effected by a contribution by the Members of all of the
Interests in the Company to a newly-formed corporation in exchange for shares of
such corporation, by merger with or into a corporation solely for the purpose of
converting the Company from a limited liability company to a corporation, or by
some other means. Each class or series of interests shall be converted or
exchanged into a class or series of equity securities of the resulting or
surviving entity on a per Unit basis. Any and all Preferred Allocations shall
not be taken into account in the conversion to a corporation.
SECTION 13.2 Amendment. Except as otherwise provided in this Agreement
or any Designation of any class or series of Interest, this Agreement may be
amended or modified from time to time only by a written instrument adopted by
Members holding of record a majority of the outstanding Units; provided,
however, (x) the amendment of any provision of this Agreement increasing,
decreasing or changing the manner of calculating any required vote or consent of
the Members or which relate to sale rights and rights of first refusal shall
require the affirmative vote or consent of 51% of the holders of the Series A
Preferred Units and 51% of the holders of the Series B Preferred Units
immediately prior to any such amendment, (y) without the written consent of each
Member adversely affected thereby (the "Affected Member"), no amendment of this
Agreement (including an amendment establishing a new series of Preferred
Interests pursuant to Article 5) shall be made that (i) requires the Affected
Member to make any additional contribution to the Company, (ii) alters the
method of allocating to the Affected Member for tax purposes any items of
income, gain, loss, deduction or credit, or (iii) alters the manner of computing
the distributions of Company Property to the Affected Member hereunder; and (z)
any amendment to this Agreement that would cause the Company to fail to be
treated as a partnership for federal income tax purposes shall require the
consent of all the Members.
SECTION 13.3 Entire Agreement. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior written oral agreements, and all contemporaneous oral
agreements, relating to such matters.
SECTION 13.4 Indemnification. (a) To the fullest extent permitted by
the Delaware Act, a director of the Company shall not be personally liable to
the Company or the Members for monetary damages for breach of duty as a
director. Without limiting the foregoing in any respect,
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a director of the Company shall not be personally liable to the Company or the
Members for monetary damages for breach of duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
the Members, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, or (iii) for any
transaction from which the director derived an improper personal benefit. If the
Delaware Act is amended to further eliminate or limit the personal liability of
directors, then the liability of a director of the Company shall be eliminated
or limited to the fullest extent permitted by the Delaware Act, as so amended.
Any repeal or modification of this Section shall not adversely affect any right
or protection of a director of the Company existing at the time of such repeal
or modification.
(b) (i) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any Proceeding by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Company or is or was
serving at the request of the Company as a director, manager, officer, employee
or agent of another limited liability company, or a corporation, partnership,
joint venture, trust or other enterprise (whether such request is made before or
after the acts taken or allegedly taken or events occurring or allegedly
occurring which give rise to such Proceeding), including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, manager, officer, employee or agent or in
any other capacity while serving as a director, manager, officer, employee or
agent, shall be indemnified and held harmless by the Company to the fullest
extent authorized by the Delaware Act, as the same exists or may hereafter be
amended (but, in case of any such amendment, only to the extent~that such
amendment permits the Company to provide broader indemnification rights than
said law permitted the Company to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent of the Company and shall inure to the benefit of his
or her heirs, executors and administrators; provided, however, that except as
provided in subsection (b) (ii) of this Section, the Company shall indemnify any
such person seeking indemnification pursuant to this subsection in connection
with a Proceeding (or part thereof) initiated by such person only if such
Proceeding (or part thereof) was authorized by the Board. In the event a
director or officer of the Company shall serve as a director, manager, officer,
employee or agent of any limited liability company, corporation, partnership,
joint venture, trust or other enterprise in which the Company maintains an
investment it shall be conclusively presumed for purposes of the indemnification
provided for herein that such service has been undertaken at the request of the
Company. The foregoing presumption shall apply regardless of whether such
director or officer is serving such entity at the request of a third party or
that his or her service with such entity was commenced prior to the
effectiveness of this Section or prior to his or her becoming an officer or
director of the Company. The right to indemnification conferred herein shall be
a contract right based upon an offer from the Company which shall be deemed to
be accepted by such person's service or continued service as a director or
officer of the Company for any period after the offer is made and shall include
the right to be paid by the Company the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that, if the
Delaware Act requires, the payment of such expenses incurred by a director or
officer in
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his or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a Proceeding, shall be made only upon delivery to
the Company of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Company may, by action of the Board, provide indemnification to
employees or agents of the Company with the same scope and effect as the
foregoing indemnification of directors and officers.
(ii) Right of Claimant to Bring Suit. If a claim under subsection
(b)(i) of this Section is not paid in full by the Company within thirty days
after a written claim has been received by the Company, the claimant may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any Proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the Company)
that the claimant has not met the standards of conduct which make it permissible
under the Delaware Act for the Company to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Company. Neither
the failure of the Company (including the Board, independent legal counsel, or
its Members) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware Act, nor an actual determination by the Company (including the Board,
independent legal counsel, or its members) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
(iii) Nonexclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any right which
any person may have or hereafter acquire under any statute, provision of this
Agreement, the By-Laws, any other agreement with the Company, vote of the Board
or the Members or disinterested directors or otherwise.
(iv) Insurance. The Company may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Company or
another limited liability company, corporation, partnership, joint venture,
trust or other enterprise against any such expense, liability or loss, whether
or not the Company would have the power to indemnify such person against such
expense, liability or loss under the Delaware Act or this Agreement.
(v) Severability. If any subsection of this Section shall be deemed to
be invalid or ineffective in any Proceedings, the remaining subsections hereof
shall not be affected and shall remain in full force and effect.
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SECTION 13.5 Successors' Counterparts. This Agreement (a) shall be
binding as to the executors, administrators, estates, heirs and legal
successors, or nominees or representatives, of the Members and (b) may be
executed in several counterparts with the same effect as if the parties
executing the several counterpart had all executed one counterpart. Except to
the extent expressly provided herein, no Person other than the Members and their
respective executors, administrators, estates, heirs and legal successors, or
their nominees or representatives, shall obtain any rights by virtue of this
Agreement.
SECTION 13.6 Governing Law. This Agreement shall be governed by in
construed in accordance with the laws of the State of Delaware without giving
effect to the principles of conflict of laws thereof.
SECTION 13.7 Filings. Following the execution and delivery of this
Agreement, the Board of Managers shall promptly prepare, or cause to be
prepared, any documents required to be filed and recorded under the Delaware
Act, and the Board of Managers shall promptly cause each such document to be
filed and recorded in accordance with the Delaware Act and, to the extent
required by local law, to be filed and recorded or notice thereof to be
published in the appropriate place in each jurisdiction in which the Company may
hereafter establish a place of business. The Board of Managers shall also
promptly cause to be filed, recorded and published such statements or other
instruments required by any provision of any applicable law of the United States
or any state or other jurisdiction which governs the conduct of its business
from time to time.
SECTION 13.8 Power of Attorney. (a) Each Member does hereby constitute
and appoint the Chairman of the Board or the Co-Chairmen of the Board, as the
case may be, the President, and the Secretary of the Company, separately or
jointly, with full power of substitution, as its true and lawful representative
and attorney-in-fact, each in its name, place and stead to make, execute, sign,
deliver and file (i) any amendment of the Certificate required because of an
amendment to this Agreement or in order to effectuate any change in the
membership of the Company, (ii) any amendment to this Agreement made in
accordance with the terms hereof, and (iii) all such other instruments,
documents and certificates which may from time to time be required by the laws
of the United States of America, the State of Delaware or any other
jurisdiction, or any political subdivision of agency thereof, to effectuate,
implement and continue the valid and subsisting existence of the Company or to
dissolve the Company or for any other purpose consistent with this Agreement and
the transactions contemplated hereby.
(b) The power of attorney granted hereby is coupled with an interest
and shall (i) survive and not be affected by the subsequent death, incapacity,
disability, dissolution, termination or bankruptcy of the Member granting the
same or the transfer of all or any portion of such Member's Interest and (ii)
extend to such Members successors, assigns and legal representatives.
SECTION 13.9 Additional Documents. Each Member, upon the request of the
Board of Managers, agrees to perform all further acts and execute, acknowledge
and deliver any documents that may be reasonably necessary to carry out the
provisions of this Agreement.
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SECTION 13.10 Notices. All notices provided for in this Agreement shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Company, in care of the President of the Company at
the Company's mailing address set forth below:
300 American Road
Morris Plains, NJ 07950
Attn: President
(b) If given to any Member, at the address thereof set forth on the
registration books maintained by or on behalf of the Company.
Each such notice, request or other communication shall be effective (i)
if given by telecopier, when transmitted to the number specified in such
registration books and confirmation of receipt is received, (ii) if given by
mail, 3 business days after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid, or (iii) if given by any
other means, when delivered at the address specified in such registration books.
SECTION 13.11 No Partnership Intended for Nontax Purposes. The Members
have formed the Company under the Delaware Act, and expressly do not intend
hereby to form a partnership under either the Delaware Uniform Partnership Act
or the Delaware Uniform Limited Partnership Act. The Members do not intend to be
partners one to another, or partners as to any third party. To the extent any
Member, by word or action, represents to another person that any other Member is
a partner or that the Company is a partnership, the Member making such wrongful
representation shall, notwithstanding any exculpatory provision herein to the
contrary, be liable to any other Member who incurs personal liability by reason
of such wrongful representation.
SECTION 13.12 Rights of Creditors and Third Parties. This Agreement is
entered into among the Members for the exclusive benefit of the Company, its
Members, and their successors and assignees. This Agreement is expressly not
intended for the benefit of any creditor of the Company or any other Person.
Except and only to the extent provided by applicable statute, no such creditor
or third party shall have any rights under this Agreement, any Admission
Agreement or any other agreement between the Company and any Member with respect
to any capital contribution to the Company or otherwise.
SECTION 13.13 Headings. The table of contents and headings in this
Agreement are included for convenience and reference only and are in no way
intended to describe, interpret, define or limit the scope, extent or intent of
this Agreement or any provision hereof.
SECTION 13.14 Gender and Number. Words used herein, regardless of the
number and gender used, shall be deemed and construed to include any other
number, singular or plural, and any
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other gender, masculine, feminine or neuter, as the context requires, and, as
used herein, unless the context clearly requires otherwise, the words "hereof n,
"herein" and "hereunder" and words of similar import-shall refer to this
Agreement as a whole and not to any particular provisions hereof. References to
Section and Article numbers herein shall, unless otherwise indicated, refer to
Sections and Articles of this Agreement.
SECTION 13.15 No Waiver. The failure or delay on the part of any
Member, the Company or the Board of Managers in exercising any right or remedy
under this Agreement, or any other agreement between the parties, or otherwise,
will not operate as a waiver thereof. The express waiver by any such Person of a
breach of any provision of this Agreement by any other Person shall not operate
or be construed as a waiver of any subsequent breach by said Person. No waiver
will be effective unless and until it is in written form and signed by the
waiving party.
IN WITNESS WHEREOF, the parties below have duly executed this
Agreement.
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SIGNATURE PAGE TO
OPERATING AGREEMENT
OF
IBC PHARMACEUTICALS, LLC
The undersigned, desiring to become a Member and a holder of Common Units,
Series A Preferred Units, Series B Preferred Units and/or Plan Units of IBC
Pharmaceuticals, LLC (the "Company"), and to become a party to the Operating
Agreement of the Company dated as of March __, 1999 as such agreement may be
amended from time to time (this "Agreement"), hereby agrees to all of the terms
and conditions of, and to be bound by, the Agreement.
IN WITNESS WHEREOF, this counterpart signature page has been executed by
the undersigned on this day of , 1999.
By:
Name:
Title:
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EXHIBIT A
<TABLE>
Initial Members/Contributions
(See Section 6.1)
<CAPTION>
Initial Members Contribution Value of Contribution Units Issued
- --------------- ------------ --------------------- ------------
<S> <C> <C> <C> <C>
Series A Series B
Preferred Preferred
IMG Technology, L.L.C. technology $18,647,020 3,729,404 Units
Coulter Corporation technology and $16,351,135 3,270,227 Units
cash
Ira and Harriet Goldenberg, JTWROS cash $ 15,000 3,000 Units
Richard Brosnahan cash $ 25,000 5,000 Units
Lee R. Goldenberg Trust cash $ 242,585 48,517 Units
LGC Investment II, L.P. cash $ 500,000 100,000 Units
EAC Investment II L.P. cash $ 1,000,000 200,000 Units
Larry L. & Betty L. Koontz, JTWROS cash $ 50,000 10,000 Units
Michael L. Brochu Revocable Trust cash $ 250,000 50,000 Units
Laurence S. & Linda J. Wilson, JTWROS cash $ 100,000 20,000 Units
Neil A. Goldenberg cash $ 242,585 48,517 Units
MSC Investment II, L.P. cash $ 500,000 100,000 Units
Claudette T. Amoroso cash $ 25,000 5,000 Units
Judith Levinson cash $ 25,000 5,000 Units
Robert Grenitz, M.D. cash $ 25,000 5,000 Units
</TABLE>
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EXHIBIT B
Current Managers
The Board of Managers of the Company as of the date of this Agreement
consists of the persons listed below and such persons shall serve on such Board
until their resignation or removal or until their successors shall have been
elected and shall have qualified in accordance with this Agreement:
1. Michael L. Brochu (Acting CEO)
2. David Goldenberg (Chairman)
3. Jacques Barbet (COO)
4. Edgar Vivanco
5. Richard Williams (CFO)
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Operating Agreement
of
IBC Pharmaceuticals, LLC
(a Delaware Limited Liability Company)
As of March 5, 1999
<PAGE>
TABLE OF CONTENTS
ARTICLE I - FORMATION; BUSINESS................................................1
SECTION 1.1 Organization; Business..............................1
SECTION 1.2 Management of the Company...........................1
SECTION 1.3 Agreement; Inconsistencies with Delaware Act;
Reliance on this Agreement..........................1
SECTION 1.4 Name................................................2
SECTION 1.5 Effective Date......................................2
SECTION 1.6 Term................................................2
SECTION 1.7 Registered Agent and Office.........................2
SECTION 1.8 Principal Office....................................2
SECTION 1.9 Qualification in Other Jurisdictions................2
ARTICLE II - DEFINITIONS.......................................................3
SECTION 2.1 Additional Member...................................3
SECTION 2.3 Adjusted Capital Contributions .....................3
SECTION 2.4 Admission Agreement.................................3
SECTION 2.5 Affected Member ....................................3
SECTION 2.6 Affiliate...........................................3
SECTION 2.7 Agreement...........................................3
SECTION 2.8 Available Cash .....................................3
SECTION 2.9 Bankrupt Member.....................................3
SECTION 2.10 Board of Managers or Board..........................4
SECTION 2.11 Book Adjustments....................................4
SECTION 2.12 Book Value..........................................4
SECTION 2.13 Business Day........................................4
SECTION 2.14 Capital Account.....................................4
SECTION 2.15 Capital Account Ratio...............................4
SECTION 2.17 Certificate ........................................4
SECTION 2.18 Code................................................4
SECTION 2.19 Common Member.......................................5
SECTION 2.20 Common Interest.....................................5
SECTION 2.21 Common Units........................................5
SECTION 2.22 Company.............................................5
SECTION 2.23 Company Liability...................................5
SECTION 2.24 Company Minimum Gain................................5
SECTION 2.25 Company Nonrecourse Liability.......................5
SECTION 2.26 Company Property....................................6
SECTION 2.27 Conversion Adjustment...............................6
SECTION 2.28 Current Members.....................................6
SECTION 2.29 Delaware Act........................................6
SECTION 2.30 Designation.........................................6
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SECTION 2.31 Director............................................6
SECTION 2.32 Disposition (Dispose)...............................6
SECTION 2.33 Dissociation........................................6
SECTION 2.34 Dissociated Member..................................6
SECTION 2.35 Effective Date......................................6
SECTION 2.36 GAAP................................................6
SECTION 2.38 Initial Members.....................................6
SECTION 2.39 Interest............................................7
SECTION 2.40 Majority in Interest................................7
SECTION 2.41 Member..............................................7
SECTION 2.42 Member Minimum Gain.................................7
SECTION 2.43 Member Nonrecourse Liability........................7
SECTION 2.44 Money...............................................7
SECTION 2.45 Nonrecourse Liabilities.............................7
SECTION 2.46 Organization........................................8
SECTION 2.47 Person..............................................8
SECTION 2.49 Preferred Allocation ...............................8
SECTION 2.50 Principal Office ...................................8
SECTION 2.51 Proceeding..........................................8
SECTION 2.52 Profit or Loss......................................8
SECTION 2.53 Property............................................9
SECTION 2.54 Qualified Offering .................................9
SECTION 2.55 Regulations ........................................9
SECTION 2.56 Related Person......................................9
SECTION 2.57 Revaluation.........................................9
SECTION 2.58 Revaluation Date....................................9
SECTION 2.59 Revaluation Event...................................9
SECTION 2.60 Series A Preferred Interest........................10
SECTION 2.61 Series B Preferred Interest........................10
SECTION 2.62 Series A Preferred Member..........................10
SECTION 2.63 Series B Preferred Member..........................10
SECTION 2.64 Series A Preferred Units...........................10
SECTION 2.65 Series B Preferred Units...........................10
SECTION 2.66 Substitute Member..................................10
SECTION 2.67 Taxable Year.......................................10
SECTION 2.68 Taxing Jurisdiction................................10
SECTION 2.69 Tax Matters Partner................................10
SECTION 2.70 Term...............................................10
SECTION 2.71 Units..............................................10
ARTICLE III - BOARD OF MANAGERS...............................................11
SECTION 3.1 Powers of the Board................................11
SECTION 3.2 Current Board Members..............................11
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SECTION 3.3 Records to be Maintained...........................11
SECTION 3.4 Reports to Members.................................11
ARTICLE IV - RIGHTS AND DUTIES OF MEMBERS.....................................12
SECTION 4.1 General Rights.....................................12
SECTION 4.2 No Right to Withdraw...............................12
SECTION 4.3 Limited Liability of Members.......................12
SECTION 4.4 Representations and Warranties.....................12
ARTICLE V - DESCRIPTION OF INTERESTS..........................................13
SECTION 5.1 Classes and Series of Interests....................13
SECTION 5.2 Common Units.......................................13
SECTION 5.3 Series A Preferred Units...........................14
SECTION 5.4 Series B Preferred Units...........................15
SECTION 5.5 Other Units........................................15
SECTION 5.6 Preferred Allocation...............................15
SECTION 5.7 Voting.............................................16
SECTION 5.8 Purchase of Interests by the Company...............16
SECTION 5.9 Status of Unit Redeemed, Transferred or
Dissociated........................................16
SECTION 5.10 Preemptive and Appraisal Rights....................16
SECTION 5.11 Persons Deemed Members.............................17
ARTICLE VI - CONTRIBUTIONS AND CAPITAL ACCOUNTS...............................17
SECTION 6.1 Initial Capital Contributions......................17
SECTION 6.2 Maintenance of Capital Accounts....................17
SECTION 6.3 Adjustments to Capital Accounts upon Distribution
of Assets..........................................18
SECTION 6.4 Revaluation of Company Property....................18
SECTION 6.5 Transfer of Capital Accounts.......................18
SECTION 6.6 Compliance with Section 704(b) of the Code.........18
ARTICLE VII - ALLOCATIONS AND DISTRIBUTIONS...................................19
SECTION 7.1 Allocations of Profit and Loss.....................19
SECTION 7.2 Company Minimum Gain Chargeback....................20
SECTION 7.3 Member Minimum Gain Chargeback.....................20
SECTION 7.4 Qualified Income Offset............................20
SECTION 7.5 Interim Distributions..............................20
ARTICLE VIII - TAXES..........................................................21
SECTION 8.1 Elections..........................................21
SECTION 8.2 Taxes of Taxing Jurisdictions......................21
SECTION 8.3 Tax Matters Partner................................21
SECTION 8.4 Method of Accounting...............................22
SECTION 8.5 Company Tax Returns................................22
SECTION 8.6 Tax Reports........................................22
199721.6
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SECTION 8.7 Taxation as Partnership............................22
ARTICLE IX - DISPOSITION OF INTERESTS.........................................22
SECTION 9.1 Dispositions.......................................22
(i) Series B Preferred Units...........................23
(ii) Series A Preferred Units...........................23
(iii) Right of First Refusal.............................23
SECTION 9.2 Rights of Transferees..............................24
SECTION 9.3 Dispositions not in Compliance Void................24
ARTICLE X - ADMISSION OF SUBSTITUTE
AND ADDITIONAL MEMBERS...............................................24
SECTION 10.1 Admission of Substitute Members....................24
SECTION 10.2 Admission of Additional Members....................24
SECTION 10.3 Procedure for Admission............................24
ARTICLE XI - DISSOCIATION OF A MEMBER.........................................25
SECTION 11.1 Dissociation.......................................25
SECTION 11.2 Effect of Certain Dissociations....................25
SECTION 11.3 Damages............................................25
ARTICLE XII - DISSOLUTION AND WINDING-UP......................................26
SECTION 12.1 Dissolution........................................26
SECTION 12.2 Notice of Dissolution..............................26
SECTION 12.3 Distribution of Proceeds Upon Dissolution..........26
SECTION 12.4 Termination........................................27
ARTICLE XIII - MISCELLANEOUS PROVISIONS.......................................27
SECTION 13.1 Conversion to a Corporation........................27
SECTION 13.3 Entire Agreement...................................27
SECTION 13.4 Indemnification....................................27
(i) Right to Indemnification...........................28
------------------------
(ii) Right of Claimant to Bring Suit....................29
-------------------------------
(iii) Nonexclusivity of Rights...........................29
------------------------
(iv) Insurance..........................................29
---------
(v) Severability.......................................29
------------
SECTION 13.5 Successors' Counterparts...........................30
SECTION 13.6 Governing Law......................................30
SECTION 13.7 Filings............................................30
SECTION 13.8 Power of Attorney..................................30
SECTION 13.9 Additional Documents...............................30
SECTION 13.10 Notices............................................31
SECTION 13.11 No Partnership Intended for Nontax Purposes........31
SECTION 13.12 Rights of Creditors and Third Parties..............31
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SECTION 13.13 Headings...........................................31
SECTION 13.14 Gender and Number..................................31
SECTION 13.15 No Waiver..........................................32
EXHIBITS AND SCHEDULES
Exhibit A - Initial Members
Exhibit B - Current Managers
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LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement") is effective as of March 5,
1999 (the "Effective Date"), between IMMUNOMEDICS, INC. (hereinafter,
Immunomedics"), having its principal place of business at 300 American Road,
Morris Plains, New Jersey 07950, and IBC PHARMACEUTICALS, L.L.C. (hereinafter
"IBC"), having its principal place of business at c/o David M. Goldenberg,
Immunomedics, Inc., 300 American Road, Morris Plains, New Jersey 07950.
WITNESSETH
WHEREAS, Immunomedics owns or controls certain Immunomedics Patent
Property and Immunomedics Biotechnology Assets (as such terms are defined
below), relating to the production and use of CEA-specific monoclonal antibodies
(Mabs), and has access to technology for the production of other humanized Mabs,
and certain adjuvant treatment; and
WHEREAS, IBC has expressed an interest in obtaining a license or
sublicense under certain Immunomedics Patent Property and the Immunomedics
Biotechnology Assets, and obtaining certain services and Mabs from Immunomedics;
and
WHEREAS, Immunomedics is a member of IMG Technology, LLC ("IMG"), a
Delaware limited liability company which in turn is a member of IBC; and
WHEREAS, IMG, as and for its capital contribution to IBC, has agreed to
arrange for the licensing or sublicensing by Immunomedics to IBC of the
Immunomedics Patent Property and the Immunomedics Biotechnology Assets; and
WHEREAS, Immunomedics is willing, as and for its capital contribution
to IMG, to license or sublicense to IBC said Immunomedics Patent Property and
the Immunomedics Biotechnology Assets and provide such services and Mabs to IBC,
subject to the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and intending to be legally bound thereby, the parties hereto agree as
follows:
1. DEFINITIONS.
1.1 "Affiliate" of a party shall mean any corporation or other business
entity controlled by, controlling or under common control of a party to this
Agreement. The word and root "control" in the context of a corporation shall
mean direct or indirect beneficial ownership of at least fifty percent (50%) of
the shares entitled to vote for members of the Board of Directors of such
corporation; and, in the context of any other business entity, the right to
receive at least fifty percent (50%) of the net income of such business entity.
<PAGE>
Notwithstanding the foregoing, for purposes of this Agreement, Immunomedics
shall be deemed to be an Affiliate of IBC as long as Immunomedics owns directly
or beneficially at least fifteen percent (15%) of the shares of IBC entitled to
vote for members of the Board of Directors of IBC, but IBC shall not be deemed
to be an Affiliate of Immunomedics, and IBC shall not be deemed to be an
Affiliate of Coulter Corporation, Immunotech S.A. or Immunotech Partners S.A.
nor shall Coulter Corporation, Immunotech S.A. or Immunotech Partners S.A. be
deemed to be Affiliates of IBC.
1.2 "Immunomedics Patent Property" shall mean each and all of the
patents and applications contained in Exhibit 1; the patents which issue from
such applications, as well as patents issuing from any continuation, substitute,
division, or continuation-in-part of the Exhibit 1 patents and applications, and
any reissues, reexaminations or extensions of such patents; and, all foreign
counterpart applications and the patents which issue therefrom, including all
foreign applications which claim priority from any of the foregoing
applications. For the purposes of this agreement, a "foreign counterpart
application" is an application filed in a country other than that of the
basic/parent application which application claims subject matter disclosed, in
whole or in part, in such basic/parent application.
1.3 "Immunomedics Biotechnology Assets" shall mean: (a) Class III
CEA-specific monoclonal antibodies, and methods, processes, and protocols for
their production; (b) technology for producing humanized Class III CEA-specific
monoclonal antibodies; and (c) patents and patent applications having claims to
the use of lysine to reduce renal toxicity of cancer radioimmunotherapy within
the IBC Field. In each case the assets include those assets owned or controlled
by Immunomedics now or at any time during the term of this Agreement .
1.4 "AES Technology" shall mean technology in which bi-specific
antibodies and radiolabeled bivalent haptens are used to increase dose delivery
to tumors and reduce toxic side effects caused by high levels of compounds in
healthy tissue and organs and which is covered by one or more patent claims
contained in one or more patents and patent applications listed in Exhibit 2.
1.5 "Control" "Controls" and "Controlled By" shall mean the ability to
grant the licenses or sublicenses herein or to provide the Mabs or services set
forth herein, as the case may be, without violating the terms of any agreement
or other arrangement with any third party.
1.6 "IBC Field" shall mean the field of radioimmunotherapy (RAIT) of
cancer using AES Technology, including applications solely for laboratory and
clinical research purposes.
1.7 "Mabs" shall mean monoclonal antibodies or fragments thereof.
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2. GRANTS AND SERVICES.
2.1 Grant to IBC.
2.1.1 Immunomedics hereby grants to IBC a worldwide,
royalty-free, exclusive license, limited to the IBC Field, under the
Immunomedics Patent Property and the Immunomedics Biotechnology Assets, to
practice any and all methods, and to use, offer for sale, and sell any and all
kits, components, reagents, Mabs and products which are covered by one or more
claims in said Immunomedics Patent Property or are included in the Immunomedics
Biotechnology Assets.
2.1.2 IBC has the right to sublicense its rights described in
Section 2.1.1 to its Affiliates, comarketers and distributors, subject to the
same limitations that apply to the underlying license, except for the right to
further sublicense.
2.2 Supply of Mabs and Products to IBC
2.2.1 Immunomedics shall, in accordance with a supply
agreement to be hereafter mutually agreed upon, supply to IBC its reasonable
requirements of CEA-specific Mabs covered by the Immunomedics Patent Property
and Immunomedics Biotechnology Assets, on reasonable commercial terms.
2.2.2 Immunomedics shall, once a product or products have been
developed by IBC, negotiate in good faith a supply agreement with IBC to supply
to IBC its reasonable requirements of finished products comprising CEA-specific
Mabs, on reasonable commercial terms.
2.2.3 In the event that the parties are unable to agree upon
the terms of the supply agreement described in Sections 2.2.1 and 2.2.2, the
terms of that agreement will be determined in a binding arbitration proceeding
as described in Section 15 below.
2.2.4 To ensure supply of the Immunomedics Biotechnology
Assets, Immunomedics shall establish and maintain viable samples of all cell
lines necessary to manufacture the Mabs and humanized Mabs described in Sections
1.3(a) and 1.3(b) at an off-site location.
2.3 Access to Technology
2.3.1 Immunomedics has licenses and rights to certain
technology for producing humanized Mabs (hMabs) and shall, upon written request
3
<PAGE>
from IBC, use reasonable commercial efforts to apply such technology to generate
humanized anti-hapten Mab for use with the AES Technology, subject to
Immunomedics' right to practice such technology on behalf of others and also
subject to the payment by IBC of any royalties owed by Immunomedics to third
parties by reason of Immunomedics applying such technology on behalf of IBC. If
Immunomedics is successful in constructing a suitable humanized Mab,
Immunomedics shall negotiate in good faith a supply agreement with IBC to supply
to IBC on reasonable commercial terms its reasonable requirements of such
humanized anti-hapten Mab.
2.3.2 Immunomedics has licenses and rights to certain lysine
adjuvant treatment technology for mitigating the side effects of RAIT and agrees
to make such technology available to IBC for use in the IBC Field , subject to
Immunomedics' right to grant sublicenses thereunder and also subject to the
payment by IBC if any royalties owed by Immunomedics to third parties by reason
of Immunomedics applying such technology on behalf of IBC.
2.4 Use of Biotechnology Assets.
2.4.1 IBC agrees that it will not itself produce nor use any
third party to produce the Mabs to be supplied by Immunomedics under the supply
agreement to be hereafter negotiated, and that it will use the CEA-specific Mabs
supplied by Immunomedics solely for products and applications in the IBC Field.
IBC will protect the confidentiality of the intellectual property relating to
the Immunomedics Biotechnology Assets with at least the same care as used by IBC
to protect its own biotechnology assets of comparable value. IBC will use
reasonable commercial efforts to keep records of the use, distribution and
location of each lot of CEA-specific Mabs provided by Immunomedics.
2.5 Right of First Negotiation for New Technology
2.5.1 Immunomedics hereby grants to IBC the right of first
negotiation to license, on reasonable commercial terms, future technology
developed or acquired by Immunomedics and under which Immunomedics has the right
to grant licenses or sublicenses in the IBC Field that may be useful to IBC to
improve its products in the IBC Field. This right of first negotiation shall be
in force for a period of 60 days from the date that IBC requests a license for
any such technology.
2.6 Right of First Negotiation for Marketing, Selling and
Distribution
2.6.1 Upon request by Immunomedics, IBC shall inform
Immunomedics of the territories where IBC is marketing IBC products. For any IBC
products that are marketed, sold, or distributed in at least one territory, IBC
hereby grants to Immunomedics the right of first negotiation to market, sell and
distribute those products in any other territory where Immunomedics markets,
4
<PAGE>
sells or distributes its own products but where IBC does not itself market, sell
or distribute the IBC products (hereinafter the "Available Marketing
Territories"). This right of first negotiation shall be in force for a period of
60 days from the date that Immunomedics requests marketing rights in the
Available Marketing Territories.
3. CONSIDERATION.
3.1 IBC Stock Consideration To IMG. As full consideration for the
grants set forth in Section 2.1 of this Agreement, IBC shall sell and deliver to
IMG the ownership of Three Million Seven Hundred Twenty-Nine Thousand Six
Hundred (3,729,600) shares of IBC's Series A Preferred Membership Interest
Units, pursuant to that certain Operating Agreement of IBC, dated as of March 5,
1999, by and among IMG., IBC and certain other parties, said conveyance to be
made on the Effective Date hereof.
4. IMMUNOMEDICS REPRESENTATIONS AND WARRANTIES,
DISCLAIMERS AND INDEMNIFICATION.
Immunomedics represents and warrants:
4.1 Property.
4.1.1 Immunomedics owns or Controls the Immunomedics Patent
Property and Immunomedics Biotechnology Assets applicable to AES Technology.
4.1.2 If Immunomedics should do anything or fail to do
anything it is required to do in the agreements granting it licenses of
Immunomedics Patent Property which result in the loss of such licenses or
jeopardize the sublicense granted hereunder to IBC, Dr. David M. Goldenberg, the
licensor of such Immunomedics Patent Property, by his countersignature to this
Agreement, agrees to directly license IBC so as to maintain the same rights and
conditions under which IBC is licensed under this Agreement.
4.1.3 Immunomedics has not been sued or charged as a defendant
in any claim, suit, action or proceeding which involves a claim of infringement
of any patents or violation of any trade secret or other proprietary right of
any third party with respect to the Immunomedics Biotechnology Assets and
Immunomedics Patent Property. The Immunomedics Biotechnology Assets and
Immunomedics Patent Property are not subject to any outstanding order, judgment,
decree, stipulation or agreement restricting in any manner the sale, assignment,
licensing or sublicensing thereof by Immunomedics.
4.1.4 Except for current litigation against Hoffmann-La Roche
("Roche") and claims or defenses by Roche and its affiliates of invalidity,
Immunomedics has no knowledge of any claims with respect to the Immunomedics
5
<PAGE>
Patent Property that have been asserted or threatened, by any other person, or
of any valid grounds for any bona fide claims challenging the ownership,
validity or enforceability of any of the Immunomedics Patent Property, nor does
any officer of Immunomedics have any knowledge of any material unauthorized use,
infringement or misappropriation of any of the Immunomedics Patent Property by
any third party, including any employee or former employee of Immunomedics.
4.1.5 Nothing in this agreement shall be construed as a
warranty or representation by Immunomedics that anything made by Immunomedics
and sold to IBC or made, used, sold, or otherwise disposed of by IBC under any
license or sublicense granted in this agreement is or will be free from
infringement of patents of third parties. Immunomedics makes no warranty,
express or implied, concerning the fitness for any particular purpose of any
products licensed or the property rights licensed to IBC.
4.2 DISCLAIMER. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO BE A
REPRESENTATION OR WARRANTY BY IMMUNOMEDICS OF THE ACCURACY, SAFETY, OR
USEFULNESS FOR ANY PURPOSE OF ANY TECHNICAL INFORMATION, TECHNIQUES, OR
PRACTICES AT ANY TIME MADE AVAILABLE BY IMMUNOMEDICS. IMMUNOMEDICS SHALL HAVE NO
LIABILITY WHATSOEVER TO IBC OR ANY OTHER PERSON FOR OR ON ACCOUNT OF ANY INJURY,
LOSS, OR DAMAGE, OF ANY KIND OR NATURE, SUSTAINED BY, OR ANY DAMAGE ASSESSED OR
ASSERTED AGAINST, OR ANY OTHER LIABILITY INCURRED BY OR IMPOSED ON IBC OR ANY
OTHER PERSON, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM (A) THE
PRODUCTION, USE, OR SALE OF ANY APPARATUS OR PRODUCT, OR THE PRACTICE OF THE
PATENTS; (B) THE USE OF ANY TECHNICAL INFORMATION, TECHNIQUES, OR PRACTICES
DISCLOSED BY IMMUNOMEDICS; OR (C) ANY ADVERTISING OR OTHER PROMOTIONAL
ACTIVITIES WITH RESPECT TO ANY OF THE FOREGOING.
4.3 Indemnification. IBC shall hold Immunomedics, its directors,
officers, employees and agents, harmless from and against any and all claims,
expenses (including reasonable attorneys fees), proceedings, demands and
liability of any kind whatsoever arising out of or in connection with or
resulting from any of the matters described in Section 4.2 hereof.
4.4 Insurance. IBC shall obtain and carry in full force and effect
liability insurance which shall fully protect Immunomedics in regard to events
covered by Section 4.2 above. IBC shall cause Immunomedics to be included as a
named insured on any such insurance. IBC shall furnish certificate(s) of such
insurance to Immunomedics, upon request. The amount of such coverage shall be
the maximum obtainable at reasonable cost.
5. IBC REPRESENTATIONS AND WARRANTIES.
6
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IBC represents and warrants:
5.1 Organization and Good Standing. IBC is a limited liability
corporation, legally and validly incorporated, organized, existing and in good
standing under the laws of the State of Delaware.
5.2 Authority Regarding this Agreement.
5.2.1 IBC has the complete and unrestricted right, power,
authority and capacity to: (a) execute and deliver this Agreement; and (b) carry
out and perform IBC's obligations pursuant to this Agreement.
5.2.2 No further corporate or shareholder approvals or
proceedings are necessary on the part of IBC to authorize this Agreement or any
of the transactions contemplated hereby. The execution, delivery and performance
of this Agreement by IBC does not require notice to, or consent or approval
from, any governmental body or other regulatory authority.
5.2.3 This Agreement has been duly and validly executed and
delivered by IBC and is a legal, valid and binding obligation of IBC,
enforceable in accordance with its terms.
6. PATENT PROPERTY.
6.1 Prosecution and Maintenance. Immunomedics shall, at its own
expense, (i) file and prosecute all patent applications contained within the
Immunomedics Patent Property and (ii) maintain all patents contained within the
Immunomedics Patent Property; provided that Immunomedics may abandon one or more
applications or patents contained within the Immunomedics Patent Property if
Immunomedics and IBC agree that the prospect for obtaining commercial useful
protection does not justify the cost of pursuing or maintaining the application
or patent.
6.2 Infringement of Patent Property by Third Parties.
6.2.1 Notice. Each party shall promptly notify the other in
writing of any alleged or threatened infringement of the Immunomedics Patent
Property of which it becomes aware and which may adversely impact the rights of
IBC hereunder.
6.2.2 Enforcement Action. In the event that the parties become
aware of any such alleged or threatened infringement of the Immunomedics Patent
Property by a person or entity who is a direct competitor of IBC, Immunomedics
shall have the right, but not the obligation, to take appropriate action against
such person or entity. In the event Immunomedics fails to institute an
infringement suit or take other reasonable action in response to such
7
<PAGE>
infringement within sixty (60) days, IBC shall have the right, but not the
obligation upon thirty (30) days notice to Immunomedics, to institute such suit
or take other appropriate action in its own name; provided however, that if
necessary, Immunomedics agrees to be joined as a party plaintiff. Regardless of
which party brings such enforcement action, the other party hereby agrees to
cooperate reasonably in any such effort. The party not bringing the action shall
have the right to participate in such action at its own expense with its own
counsel and any recovery obtained by settlement or otherwise shall be disbursed
as follows: each party shall first recover any reasonable expenses incurred in
such action (including counsel fees). Thereafter, the parties shall share any
remaining recovery in the same proportion as their recovered costs. In the event
that the party not bringing the action does not want to participate in the
recovery obtained by settlement or otherwise, then the party instituting the law
suit shall be responsible for all costs and expenses of the non-participating
party in cooperating with the party instituting the law suit.
6.3 Infringement of Third Party Patent Rights.
6.3.1 In the event that the use or sale of a process or
product incorporating AES Technology in the IBC Field and covered by the
Immunomedics Patent Property becomes the subject of a claim of infringement of a
patent or other proprietary right, the parties shall promptly confer to discuss
the claim and whether a joint defense is feasible or desirable.
6.3.2 Unless the parties otherwise agree, IBC shall assume the
responsibility and expense for the conduct of the defense of any such claim
described in Section 6.3.1. Immunomedics shall have the right, but not the
obligation, to participate in any such suit at its sole option and at its own
expense. Each party shall reasonably cooperate with the party conducting the
defense of the claim. No party shall enter into any settlement that affects any
other party's rights or interests without such other party's written consent,
not to be unreasonably withheld.
6.4 Joint inventions.
6.4.1 "Joint Invention(s)" means any discovery, whether
patentable or otherwise, relating to the AES Technology which is jointly made by
one or more employees of IBC and one or more employees of Immunomedics, the
inventorship to be determined by the criteria used to determine inventorship
under U.S. patent law, and any U.S. or foreign patent application claiming the
discovery, together with all divisions, continuations, or continuations-in-part
thereof, and any patents issued thereon or reissues or extensions thereof.
6.4.2. IBC and Immunomedics shall be joint owners of the Joint
Invention(s), all know-how and information necessary to practice the Joint
Invention(s), any applications for patent which may be filed on the Joint
Invention(s), and any improvements thereon which arise from continued
8
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collaborative research between the parties, and each and every patent covering
the Invention(s), or such improvements, that may be issued in the United States
of America and in any foreign country. IBC and Immunomedics shall each have a
fifty percent (50%) interest in each Joint Invention.
6.4.3 Responsibility for preparing, filing, prosecuting, and
maintaining all patent applications and patents embodying the Joint Invention(s)
shall be with Immunomedics, who will consult with and keep IBC fully informed as
to the preparation, filing, prosecution and maintenance of all patent
applications and patents relating to the Joint Invention(s). Prosecution or
maintenance of any patent or patent application shall not be abandoned by
Immunomedics without the written consent of IBC.
6.4.4 Immunomedics and IBC will each use their reasonable
efforts to assure that the inventors and other employees thereof fully cooperate
in the preparation, filing, prosecution, and maintenance of all patent
applications and patents embodying the Joint Invention(s).
6.4.5 IBC shall pay all reasonable expenses associated with
preparing, filing, prosecuting, and maintaining all patent applications and
patents relating to the Joint Invention(s), unless Immunomedics is also using
the technology covered by the claims of the application or patent in which case
the parties shall share equally in such costs and expenses. Immunomedics shall
maintain adequate records showing all expenses incurred in connection with such
patent applications and patents, which shall be made available to IBC for
inspection on reasonable notice. In the event that Immunomedics anticipates the
possibility of any extraordinary expenditures arising from the preparation,
filing, prosecution, or maintenance of any patent application or patent
contemplated by this Agreement, Immunomedics shall provide IBC with full
particulars and shall discuss with IBC mutually acceptable course of action
prior to incurring such expenditures. IBC shall reimburse Immunomedics for such
costs and expenses within sixty (60) days of receiving an invoice from
Immunomedics for such expenses.
6.4.6 Either party may elect to discontinue its obligation to
pay or reimburse expenses associated with any selected patent application or
patent for a Joint Invention within any national jurisdiction, upon sixty (60)
days written notice by such party (the "Terminating Party") to the other party
(the "Continuing Party").
6.4.7 The Continuing Party may elect to request assignment of
the selected patent rights owned by the Terminating Party in the Joint
Invention(s) and any licenses issued for said Joint Invention(s). The Continuing
Party shall make its election and shall advise the Terminating Party in writing
within thirty (30) days after receipt of a notice of discontinuance under
Section 6.4.6. Subject to the assumption by the Continuing Party of sole
responsibility for the management and expense of the Joint Invention(s), the
Terminating Party shall convey to the Continuing Party assignment of the
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Invention(s) and licenses, and shall do all things necessary to transfer file
wrappers and other files related to such rights and licenses to the Continuing
Party or its designee. Upon perfection of such assignments, the Terminating
Party shall have no further rights or obligations with respect to such Joint
Invention, and the Continuing Party may thereafter separately license such Joint
Invention, without accounting to the Terminating Party.
7. TERM AND TERMINATION.
7.1 Term. This Agreement shall become effective immediately upon the
Effective Date and, unless earlier terminated by the provisions for termination
herein, shall continue in effect until the last to expire of the patents within
the Immunomedics Patent Property to which IBC has a license or sublicense,
whether such patent is currently issued or issues from any patent application
contained within the Immunomedics Patent Property.
7.2 Termination.
7.2.1 Material Default By Licensee Upon any material breach or
default under this Agreement by IBC, Immunomedics shall have the right to
terminate this Agreement and the rights, privileges and license granted
hereunder by forty-five (45) days advance notice to IBC specifying such default
or breach. Such termination shall become effective unless IBC shall have
substantially cured any such breach or default prior to the expiration of the
said forty- five (45) day period, or, if the breach or default cannot reasonably
be cured within such forty-five (45) day period, IBC shall have commenced such
cure within such forty-five (45) day period and shall diligently prosecute such
cure to completion within not more than an additional forty-five (45) days. In
the event IBC: (i) becomes insolvent, makes a general assignment for the benefit
of its creditors, or admits in writing its inability to pay its debts generally
as they become due; (ii) files a voluntary petition in bankruptcy, or, by
voluntary petition, answer or consent, seeks relief under the provisions of any
bankruptcy or other similar law providing for its reorganization or winding up,
or providing for an agreement, composition, extension or adjustment with
creditors; petitions or consents to the appointment of a receiver, this
Agreement may be terminated immediately and without notice by Immunomedics at
Immunomedics' option. In the event of an involuntary bankruptcy petition,
Immunomedics may immediately suspend the license granted under this Agreement,
subject to reinstatement only if the bankruptcy is dismissed within sixty (60)
days or, in the case of a receiver, such appointment is being contested in good
faith and such appointment is dismissed within sixty (60) days.
8. ASSIGNABILITY. Neither this Agreement nor any part hereof shall be assignable
by either party without the prior, express, written permission of the other
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party, which permission shall not be unreasonably withheld or delayed. Any
attempted assignment without such consent shall be void. Notwithstanding the
preceding two sentences, any party may assign this Agreement to an Affiliate or
in connection with the merger, consolidation, transfer or sale of substantially
all of its assets relating to this Agreement.
9. NOTICES. All notices required or permitted to be given under this Agreement
shall be in writing and shall be mailed by registered or certified mail, postage
prepaid and receipt requested, addressed to the signatory to whom such notice is
required or permitted to be given or sent by facsimile or when personally
delivered. All notices shall be deemed to have been given when mailed, as
evidenced by the return receipt or, when sent by facsimile, as evidenced by
acknowledgment of transmission, or by overnight delivery e.g., Express Mail,
Fed. Ex., UPS, DHL, with receipt in good order requested and received.
To Immunomedics:
Robert J. DeLuccia
President and CEO
Immunomedics, Inc.
300 American Road
Morris Plains, New Jersey 07950
Facsimile: 973-605-8282
To IBC:
IBC Pharmaceuticals, Inc.
c/o Dr. David Goldenberg
Immunomedics, Inc.
300 American Road
Morris Plains, New Jersey 07950
Facsimile: 973-605-8311
Any party may, by written notice to the others, designate a new addressee or
address to which notices to the party giving the notice shall thereafter be
mailed or sent by facsimile.
10. SEVERABILITY. If a court of competent jurisdiction declares any provision of
this Agreement invalid or unenforceable, or if any government or other agency
having jurisdiction over either Immunomedics, or IBC deems any provision to be
contrary to any laws, then that provision shall be severed and the remainder of
the Agreement shall continue in full force and effect. To the extent possible,
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<PAGE>
the parties shall revise such invalidated provision in a manner that will render
such provision valid without impairing the parties' original interests.
11. ENTIRE AGREEMENT. This instrument contains the entire Agreement between the
parties relative to its subject matter. No verbal agreement, conversation or
representation between any officers, agents or employees of the parties hereto
before the execution of this Agreement shall affect or modify any of the terms
or obligations herein contained.
12. MODIFICATIONS IN WRITING. No change, modification, extension, termination or
waiver of this Agreement, or any of the provisions herein contained, shall be
valid unless made in writing and signed by a duly authorized representative of
each party.
13. GOVERNING LAW. The validity and interpretation of this Agreement and the
legal relations of the parties to it shall be governed by the laws of the State
of New Jersey, excluding New Jersey's conflict of laws principles
14. CONSTRUCTION. The parties agree that they have participated equally in the
formation of this Agreement and that the language herein should be not be
presumptively construed against any of them.
15. ARBITRATION.
15.1 Any controversy or claim arising out of, or relating to this
Agreement shall be resolved by final and binding arbitration in Morris Plains,
New Jersey under the Commercial Arbitration Rules of the American Arbitration
Association then obtaining.
The arbitration shall be subject to the following terms:
(a) The number of arbitrators shall be three (3) unless
otherwise agreed to by the parties to the dispute.
(b) The arbitrators shall each be an independent, impartial
third party having no direct or indirect personal or financial relationship to
either of the parties to the dispute, who has agreed to accept the appointment
as arbitrator on the terms set forth in this Article 15.
(c) The arbitrators shall each be an active or retired
attorney, law professor or judicial officer with at least five (5) years
experience in general commercial matters and a familiarity with the technology
relating to this agreement and with the laws governing proprietary rights in
intellectual property to the extent necessary to adjudicate the dispute.
(d) The arbitrators shall be selected as follows:
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(i) Within thirty (30) days of a request for
arbitration made by either party, Immunomedics shall select one arbitrator and
IBC shall select one arbitrator and these two arbitrators shall then agree on
the selection of a third arbitrator.
(ii) If the method of selection set out in
Section 15.1(d)(i) fails for any reason, then either party may petition the
American Arbitration Association for appointment of the arbitrators in
accordance with its rules, provided that the arbitrators must satisfy the
requirements of (b) and (c) above.
(e) The dispute shall be submitted to the three arbitrators
within ninety (90) days after they have been selected. A decision shall be
rendered within sixty (60) days after the dispute is submitted.
(f) The arbitrators shall render a decision in writing
accompanied by written findings explaining the facts determined in support of
the decision and any relevant conclusions of law.
(g) The fees of the arbitrators and any other costs and fees
associated with the arbitration shall be paid in accordance with the decision of
the arbitrators.
(h) The arbitrators shall have no power to add to, subtract
from, or modify any of the terms or conditions of this Agreement. Any decision
rendered in such arbitration may be enforced by either party in the United
States District Court for the Northern District of New Jersey, to whose
jurisdiction for such purposes the parties to the dispute hereby irrevocably
consent and submit.
16. FURTHER ASSURANCES. Each party agrees to furnish, upon request of the other
party, such further information as may be required to give effect to the
transactions contemplated by this Agreement and to permit each party to fully
enjoy the benefit of the rights and grants provided hereunder. In the event a
party makes a good faith determination that it is necessary for the other party
to take certain additional actions to give full effect to the transactions
contemplated by this Agreement and to permit each party to fully enjoy the
benefit of the rights transferred hereunder, such party shall notify the other
of its determination and the parties agree to meet to discuss in good faith the
possibility of such additional actions being taken.
17. CONFIDENTIALITY
17.1 Non-Disclosure and Non-Use of Confidential Information. Anything
in this Agreement to the contrary notwithstanding, all knowledge, know-how,
practices, process or other information (hereinafter referred to as
"Confidential Information") disclosed or submitted, either orally, in writing or
in other tangible or intangible form which is designated as Confidential
Information by either party to the other shall be received and maintained by the
receiving party in strict confidence and shall not be disclosed to any third
13
<PAGE>
party, except that disclosure may be made to Coulter Corporation and Beckman
Coulter Inc. (hereinafter collectively "Coulter"), and Immunotech S.A. and
Immunotech Partners, S.A. (hereinafter collectively "Immunotech") with
disclosing parties assuring that Coulter and Immunotech, shall abide by the
obligations of this Article 17. Oral disclosures of Confidential Information
which the disclosing party wishes to be maintained in confidence under this
Article 17 shall be reduced to writing within fourteen (14) days of disclosure.
Furthermore, neither party shall use the Confidential Information for any
purpose other than those purposes specified in this Agreement. The parties may
disclose Confidential Information to the minimum number of their employees
reasonably requiring access thereto for the purposes of this Agreement,
provided, however, that prior to making any such disclosures each such employee
or other recipient shall be apprised of the duty and obligation to maintain
Confidential Information in confidence and not to use such Confidential
Information for any purpose other than in accordance with the terms and
conditions of this Agreement. The confidentiality obligation under this
paragraph shall survive the expiration or early termination of this Agreement.
17.2 Limitation on Confidentiality
17.2.1 Subject to Section 17.2.2, nothing contained herein
will in any way restrict or impair either party's right to use, disclose, or
otherwise deal with any Confidential Information which:
(i) At the time of its receipt is generally
available to the public or thereafter becomes available to the public through no
act or failure to act of the receiving party; or
(ii) Was independently known prior to receipt thereof
as shown by written records, or thereafter is made available to such receiving
party as a matter of lawful right by a third party who does not require that it
be maintained confidential.
(iii) Is thereafter independently developed by the
receiving party without use of or access to the Confidential Information of the
disclosing party.
17.2.2 If any designated Confidential Information received by
a party is believed to be exempt from the confidentiality obligation of Section
17.2.1, the receiving party shall notify the disclosing party in writing within
ten (10) days of receipt and shall provide documentation substantiating the
claim for exemption, failing which the purported exemption is waived and the
confidentiality obligation of Section 17.2.1 shall continue to apply to such
designated Confidential Information.
18. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be an original and all of which shall constitute together
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their duly authorized representatives as of the dates
noted below.
<PAGE>
IMMUNOMEDICS, INC. IBC PHARMACEUTICALS, L.L.C.
By: ____________________________ By: ___________________________
Robert J. DeLuccia
Title: President and CEO Title:
Date:___________________________ Date:___________________________
I agree to the provisions of Section 4.1.2 of this Agreement.
________________________________
David M. Goldenberg, Sc.D., M.D.
Date:___________________________
<PAGE>
EXHIBIT 1
IMMUNOMEDICS PATENT PROPERTY
(a) U.S. PATENTS:
US 4,818,709
(b) U.S. PATENT APPLICATIONS:
US 08/318,157 (now allowed - to issue 2/25/99)
(c) CORRESPONDING FOREIGN PATENTS AND APPLICATIONS
Japan 2,598,893, Japan 254809/94 (Div.), Japan 8-512588
Australia 629,213, Australia 582,731, Australia 37196/95
Canada 1,274,794, Canada 2,200,868
Israel 70746
EPO 131,627, (Austria, Belgium, France, G. Britain, W. Germany,
NetherlandS, Luxembourg, Sweden, Switzerland/Liechtenstein)
EPO 95935020.8
<PAGE>
EXHIBIT 2
IMMUNOTECH PATENT PROPERTY
I. PRIORITY PATENT APPLICATIONS:
A. PRIORITY PATENT APPLICATIONS:
1. FRENCH PATENT APPLICATION NO. 8613146 FILED SEPTEMBER 19,
1986, AND GRANTED AS FRENCH PATENT NO. 2604092, ON APRIL 13, 1990 AND ENTITLED
"AFFINITY ENHANCEMENT IMMUNOLOGICAL REAGENTS FOR IN VIVO DETECTION AND KILLING
OF SPECIFIC TARGET CELLS" AND ASSIGNED TO IMMUNOTECH, S.A. (HEREINAFTER
"AFFINITY ENHANCEMENT PATENT")
2. FRENCH PATENT APPLICATION NO. 8912622 FILED SEPTEMBER 21,
1989, AND GRANTED AS FRENCH PATENT NO. 2652004, ON OCTOBER 28, 1994 AND ENTITLED
"HYDROPHILIC DERIVATIVES, THEIR APPLICATION TO DIAGNOSIS AND TO THERAPEUTICS,
DIAGNOSTIC OR THERAPEUTIC KITS AND IMMUNOLOGICAL REAGENTS" (HEREINAFTER
"HYDROPHILIC DERIVATIVES PATENT")
3. FRENCH PATENT APPLICATION NO. 9213267 FILED OCTOBER 27,
1992, AND GRANTED AS FRENCH PATENT NO. 2697255 ON JANUARY 13, 1995 ENTITLED
"TECHNETIUM OR RHENIUM-BINDING BI-HAPTEN DERIVATIVES, A PROCESS FOR THEIR
PREPARATION, DIAGNOSTIC AND THERAPEUTIC APPLICATION, AND KITS AND IMMUNOLOGICAL
REAGENTS CONTAINING THE SAME" ASSIGNED TO IMMUNOTECH PARTNERS (HEREINAFTER
"TECH-RHE BIVALENT HAPTENS PATENT")
B. CORRESPONDING FOREIGN PATENTS AND APPLICATIONS:
1. CORRESPONDING TO AFFINITY ENHANCEMENT PATENT
(a) EUROPEAN PATENT NO. 263046 GRANTED APRIL 15, 1992.
NATIONALIZED IN AUSTRIA AS PATENT NO. 74769, GERMANY AS PATENTSCHRIFT
NO. 3778281 AND SPAIN AS PATENT NO. 2032468.
(b) AUSTRALIAN PATENT NO. 613318, ACCEPTED AUGUST 1, 1991.
(c) CANADIAN PATENT NO. 1306414, GRANTED AUGUST 18, 1992.
(d) FRENCH PATENT NO. 2604092, GRANTED APRIL 13, 1990.
<PAGE>
(e) JAPANESE PATENT APPLICATION NO. 2612454, EXAMINED MAY
21, 1997.
(f) KOREAN PATENT APPLICATION NO. 9005622, EXAMINED JULY
31, 1990.
(g) U.S. PATENT NO. 5,256,395 GRANTED OCTOBER 26, 1993.
2. CORRESPONDING TO HYDROPHILIC DERIVATIVE PATENT
(a) EUROPEAN PATENT NO. 419387, GRANTED NOVEMBER 20, 1996.
NATIONALIZED IN AUSTRIA AS PATENT NO. 145338 AND SPAIN AS PATENT NO.
2094750.
(b) AUSTRALIAN PATENT NO. 638488, ACCEPTED JULY 1, 1993.
(c) CANADIAN PATENT NO. 2025607, GRANTED MARCH 22, 1991.
(d) FRENCH PATENT NO. 2652004, GRANTED OCTOBER 28, 1994.
(e) GERMAN PATENT PUBLICATION NO. 69029184, PUBLISHED JUNE
5, 1997.
(f) JAPANESE PATENT APPLICATION NO. 3173900, UNEXAMINED,
JULY 29, 1991.
(g) U.S. PATENT NO. 5,274,076 ISSUED DECEMBER 28, 1993.
3. CORRESPONDING TO TECH-RHE BIVALENT HAPTENS PATENT
(a) EUROPEAN PATENT PUBLICATION NO. 595743, PUBLISHED MAY
4, 1994.
(b) AUSTRALIAN PATENT APPLICATION NO. 669219, ACCEPTED MAY
30, 1996.
(c) CANADIAN PATENT NO. 2109256, GRANTED APRIL 28, 1994.
(d) JAPANESE PATENT APPLICATION NO. 6321809, UNEXAMINED,
NOVEMBER 22, 1994.
<PAGE>
OPERATING AGREEMENT
OF
IMG TECHNOLOGY, LLC
Dated as of March 5, 1999
<PAGE>
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT......................................................... 1
ARTICLE I DEFINITIONS............................... 1
Section 1.1 Definitions............................... 1
Section 1.2 Rules of Construction..................... 4
ARTICLE II ORGANIZATIONAL MATTERS.................... 5
Section 2.1 Organization.............................. 5
Section 2.2 Company Name.............................. 5
Section 2.3 Principal Place of Business............... 5
Section 2.4 Registered Agent.......................... 5
Section 2.5 Company Purpose........................... 5
Section 2.6 Term of Company........................... 5
Section 2.7 Title to Property......................... 5
<PAGE>
ARTICLE III CAPITALIZATION............................ 5
Section 3.1 Initial Capital Contributions of the
Members................................. 6
Section 3.2 Admission of Members...................... 6
Section 3.3 Company Capital........................... 6
ARTICLE IV MANAGEMENT OF THE COMPANY; ACTS OF
MEMBERS AND MEMBER MEETINGS............. 6
Section 4.1 Management................................ 6
Section 4.2 Voting Rights............................. 6
Section 4.3 Management Powers......................... 6
Section 4.5 Meetings of the Members................... 8
Section 4.6 Limitation of Liability................... 9
Section 4.7 Liability for Certain Acts................ 9
Section 4.8 Reimbursement of Expenses;
Compensation............................10
<PAGE>
ARTICLE V TRANSFERS; RESTRICTIONS ON TRANSFERS;
ADDITIONAL MEMBERS .....................10
Section 5.1 Transfer Procedures.......................10
Section 5.2 Restrictions on Transfers; Permitted
Transfers...............................10
Section 5.3 Transfers by IMMUNOMEDICS.................11
Section 5.4 Transfers by GOLDENBERG...................11
Section 5.6 Additional Members........................12
ARTICLE VI DISSOLUTION AND WINDING UP................12
Section 6.1 Dissolution Events........................12
ARTICLE VII REMEDIES FOR BREACH.......................13
Section 7.1 Specific Enforcement......................13
Section 7.2 Attorneys Fees and Expenses...............13
ARTICLE VIII AMENDMENTS................................13
<PAGE>
ARTICLE IX MISCELLANEOUS.............................13
Section 9.1 Notices...................................13
Section 9.2 Consents..................................14
Section 9.3 Binding Effect............................14
Section 9.4 Further Actions...........................14
Section 9.5 Headings and Captions.....................14
Section 9.6 Relationship of this Agreement to the
Default Rules...........................14
Section 9.7 Relationship of this Agreement and
the Certificate of Formation............14
Section 9.8 Counterparts..............................14
Section 9.9 Creditors and Other Third Parties.........14
Section 9.10 Governing Law.............................14
Section 9.11 No Waiver.................................15
Section 9.12 Integration...............................15
Section 9.13 Severability..............................15
<PAGE>
ADDENDUM.................................................................... A-1
MEMBERSHIP ROSTER..................................................... EXHIBIT A
INITIAL CAPITAL CONTRIBUTIONS......................................... EXHIBIT B
<PAGE>
THIS OPERATING AGREEMENT is entered into and shall be effective as of
March 5, 1999, by and between IMMUNOMEDICS, INC., a Delaware corporation
("IMMUNOMEDICS"), and DAVID GOLDENBERG, an individual ("GOLDENBERG")
(IMMUNOMEDICS and GOLDENBERG each a "Member" and sometimes collectively referred
to herein as the "Members"), and IMG TECHNOLOGY, LLC, a Delaware limited
liability company (the "Company").
PRELIMINARY STATEMENT
A. The Company was formed on February 25, 1999 by the filing of a
Certificate of Formation, duly executed by Tanya M. Taylor (in
her capacity as organizer of the Company, the "Organizer"), in
the office of the Secretary of the State of the State of
Delaware. On February 25, 1999, the Organizer executed a
Statement of the Organizer certifying to the formation of the
Company and the appointment of IMMUNOMEDICS as the initial
Member of the Company.
B. The Company and Coulter Corporation intend to enter into an
Operating Agreement of IBC Pharmaceutical, LLC ("IBC
Pharmaceutical") (the "IBC Operating Agreement"), as Members
pursuant to which the Company will, through IMMUNOMEDICS,
contribute certain targeted technology to IBC Pharmaceutical.
C. The parties to this Agreement wish to set forth their
agreements regarding the financing, ownership, governance and
operation of the Company. To reflect the foregoing, the
parties hereto agree to continue the Company on the terms and
conditions set forth below.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. When used in this Agreement and the Addendum,
the following capitalized terms shall have the meanings set forth in this
Section, unless the context otherwise requires:
"Accountants" means such regionally or nationally recognized firm of
independent public accountants as may be engaged by the Members on behalf of the
Company.
"Act" means the Delaware Limited Liability Company Act as set forth in
Sections 18-101 to 18-1109 of the Delaware Code, as amended from time to time
(or any corresponding provision or provisions of succeeding law).
<PAGE>
"Addendum" means that addendum annexed hereto and incorporated herein
by reference, which contains rules of governance with respect to various
financial matters pertaining to the Company, including issues pertaining to
allocations of profits and losses and with respect to applicable rules under the
Code and Treasury Regulations.
"Affiliate" means, with respect to any person, (i) any person that
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, the specified person; (ii) any
person that is an officer of, director of, partner in, or trustee of, or serves
in a similar capacity with respect to, the specified person or of which the
specified person is an officer, member or trustee, or with respect to which the
specified person serves in a similar capacity (iii) any person that, directly or
indirectly, is the beneficial owner of ten percent (10%) or more of any class of
equity securities of the specified person or of which the specified person is
directly or indirectly the beneficial owner of ten percent (10%) or more of any
class of equity securities; or (iv) any relative or spouse of the specified
person who makes his home with that of the specified person; except that a
person who is a member in a company or joint venture with the Company or any
Affiliate of the Company is not an Affiliate of the Company or the Member if
such person is not otherwise an Affiliate thereof.
"Agreement" means this operating agreement, as originally executed and
as amended from time to time.
"Bankruptcy" means, with respect to any Person, the (i) commencement by
such Person of a voluntary case for relief as a debtor under the United States
Bankruptcy Code or the filing by such Person of a petition to take advantage of
any other present or future insolvency act or other applicable law relating to
bankruptcy, insolvency, reorganization, or relief of debtors; (ii) making by
such Person of an assignment for the benefit of creditors; (iii) consent by such
Person to, or acquiescence in by such Person of, the appointment of a receiver,
liquidator, trustee, custodian, or other similar official of such Person or of
the whole or any substantial part of such Person's properties or assets; (iv)
entering by a court of competent jurisdiction of an order, judgment, or decree,
appointing a receiver, liquidator, trustee, custodian, or other similar official
of such Person or of the whole or any substantial part of such Person's
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properties or assets, which order, judgment, or decree has remained unvacated,
or not set aside, or unstayed, for a period of not less than one hundred twenty
(120) days; (v) commencement of an involuntary case against such Person under
the United States Bankruptcy Code, or filing against such Person of a petition
seeking similar relief under any other present or future insolvency act or other
applicable law relating to bankruptcy, insolvency, reorganization, or relief of
debtors, which case or petition has remained undismissed for not less than one
hundred twenty (120) days; (vi) assumption, under the provisions of any other
law for the relief or aid of debtors, by any court of competent jurisdiction of
custody or control of such Person or the whole or any substantial part of such
Person's properties or assets, which custody or control remains unvacated or
unstayed for not less than one hundred twenty (120) days; or (vii) in the case
of a Member that is a corporation, partnership or limited liability company, the
liquidation or dissolution of such Member.
"Business Day" means any day on which the New York Stock Exchange is
neither required nor authorized to close.
"Capital Account" means the capital account established on the books of
the Company for each Member in accordance with the provisions of Section 2.1 of
the Addendum.
"Capital Contribution" means, with respect to any Member, the amount of
money and the fair market value of any property (other than money or a
promissory note that is made by such Member and that is not readily traded on an
established securities market) contributed to the Company by such Member with
respect to his interest in the Company.
"Certificate of Cancellation" means a certificate of cancellation filed
with the Secretary pursuant to the Act to cancel the Certificate of Formation.
"Certificate of Formation" means the certificate of formation filed
with the Secretary on February 25, 1999 in connection with the formation of the
Company, as the same may be amended from time to time.
"Company" means the limited liability company formed and operated
pursuant to the Articles of Organization and this Agreement.
"Default Rules" means a rule provided by the Act that (i) structures,
defines or regulates the finances, governance, operations or other aspect of a
limited liability formed under the Act, and (ii) applies except to the extent it
is negated or modified through the provisions of a limited liability company's
articles of organization or operating agreement.
"Delaware Code" means Chapter 18, Title 6 of the Delaware Code
Annotated.
"Dissolution Event" means an event described in Section 7.1. "Fiscal
Year" means (i) the period commencing on the date of this Agreement and ending
on the following December 31; (ii) any subsequent twelve (12) month period
beginning on January 1 and ending on December 31; or (iii) any portion of the
period described in clauses (i) or (ii) for which the Company is required to
close its books and allocate Profits (as such term is defined in the Addendum),
Losses (as such term is defined in the Addendum) and other items of income,
gain, loss, deduction or credit.
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"Initial Capital Contribution" means, with respect to any Member, the
aggregate Capital Contributions made by such member as of the effective date of
this Agreement.
"Interest" means a Member's membership interest in the Company at any
given time, including such Member's interest in the capital and profits of the
Company.
"Member" means, at any time, any Person who is then a member of the
Company (within the meaning of Section 102(q) of the Act).
"Permitted Transferee" means, with respect to any Member, (i) his
spouse, children or grandchildren, (ii) a trustee of a trust for the sole
benefit of any one or more of the persons identified in the preceding clause
(i), or (iii) any corporation, partnership or other entity controlled by such
Member or any person identified in the preceding clause (i).
"Person" means any individual or trust, estate, partnership,
corporation, limited liability company or other entity.
"Secretary" means the Office of the Secretary of State of the State of
Delaware.
"Transfer" means to sell, assign, convey, donate, transfer, lease,
mortgage, pledge, encumber or otherwise dispose of all or part of any Interest,
or to contract to do any of the foregoing.
Section 1.2 Rules of Construction. Unless the context otherwise
requires, (i) a term shall have the meaning assigned to it in Section 1.1; (ii)
an accounting term not otherwise defined shall have the meaning assigned to it
in accordance with generally accepted accounting principles; (iii) "or" shall
not be exclusive; (iv) words in the singular shall include the plural, and vice
versa; (v) words in the masculine gender shall include the feminine and neuter,
and vice versa; and (vi) any reference to an "Article" or "Section," if not
otherwise modified, shall be a reference to an Article or Section of this
Agreement.
4
<PAGE>
ARTICLE II
ORGANIZATIONAL MATTERS
Section 2.1 Organization. On February 25, 1999, a Certificate of
Formation in compliance with Section 18-201(a) of the Act was filed with the
Secretary causing the organization of the Company, effective as of said date.
Section 2.2 Company Name. The name of the Company is "IMG TECHNOLOGY,
LLC".
Section 2.3 Principal Place of Business. The principal place of
business of the Company is located at 300 American Road, Morris Plains, New
Jersey 07950. The Members may change the principal place of business of the
Company to any other place within or without the State of New Jersey. The
Company may maintain such additional offices and places of business in such
locations as the Members may deem necessary or advisable.
Section 2.4 Registered Agent. The Secretary is designated as the
Company's registered agent upon whom process against the Company may be served
within the State of Delaware. The President is authorized to appoint a successor
registered agent or agents if the registered agent or agents resign or if the
Members otherwise deem it desirable to do so.
Section 2.5 Company Purpose. The purposes of the Company are (i) to
engage in any lawful act or activity for which limited liability companies may
be formed under the Act, and (ii) to engage in any and all activities necessary
or incidental thereto.
Section 2.6 Term of Company. The term of the Company commenced on the
date the Articles were filed with the Secretary and shall continue until twelve
o'clock noon on December 31, 2050, unless terminated sooner pursuant to the
provisions of Article XII.
Section 2.7 Title to Property. All property owned by the Company
shall be owned by the Company as an entity and no Member shall have any
ownership interest in such property in his individual name, and each Member's
Interest shall be personal property for all purposes. At all times after the
date of this Agreement, the Company shall hold title to all of its property in
its own name and not in the name of any Member.
ARTICLE III
CAPITALIZATION
Section 3.1 Initial Capital Contributions of the Members. The Capital
Contribution of each of the Members, as of the date hereof, is as set forth on
the schedule annexed hereto as Exhibit B.
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Section 3.2 Admission of Members. The Company shall not accept a
Capital Contribution on behalf of the Company from any person that is not a
Member and shall not admit any such person to the Company as a Member.
Section 3.3 Company Capital.
Section 3.3.1. Interest. The Company shall not be required
to pay interest on any Capital Contribution.
Section 3.3.2. Returns and Withdrawals. No Member shall have
the right to withdraw or receive any return of his Capital Contribution, except
as expressly provided by Section 3.3.1 and Articles IV and VI of the Addendum,
and no Capital Contribution may be returned in the form of property (other than
money), except as specifically provided by Section 6.8 of the Addendum.
ARTICLE IV
MANAGEMENT OF THE COMPANY;
ACTS OF MEMBERS AND MEMBER MEETINGS
Section 4.1 Management. The overall management of the Company shall
be vested in its Members and all management decisions with respect to the
Company shall be made in accordance with Section 4.3 and 4.4.
Section 4.2 Voting Rights. On matters subject to a vote of the
Members, the Members shall vote in proportion with their percentage Interest in
the Company.
Section 4.3 Management Powers. Management and control of the affairs of
the Company shall be vested in the Members. The rights and powers of the Members
shall be exercised by them in the manner set forth herein. In addition to the
powers now or hereafter granted by law and as otherwise provided for in this
Agreement, the Members for, and in the name and on behalf of the Company, shall
have the power, either directly or through one or more intermediaries, to (i)
acquire by purchase, lease or otherwise any real or personal property which may
be necessary, convenient or incidental to the accomplishment of the purposes of
the Company; (ii) operate, maintain, finance, improve construct, own, grant
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options with respect to, sell, convey, assign or lease any real or personal
property which may be necessary, convenient or incidental to the accomplishment
of the purposes of the Company; (iii) incur indebtedness or issue evidences of
indebtedness which may be necessary, convenient, or incidental to the purposes
of the Company and secure the same by mortgage, pledge, or other lien on any
assets of the Company; (iv) execute any and all agreements, contracts,
documents, certifications, and instruments which may be necessary, convenient,
or incidental in connection with the acquisition, financing, operation, and sale
of any assets of the Company; (v) prepay in whole or in part, refinance, recast,
increase, modify, or extend any borrowings or indebtedness of the Company and,
in connection therewith, to execute any extensions, consolidations,
modifications, or renewals of any mortgages on any assets of the Company; (vi)
perform, or cause to be performed, all of the Company's obligations under any
agreement to which the Company is a party or is otherwise bound; (vii)
prosecute, defend, or compromise upon such terms as they may determine and upon
such evidence as they may deem sufficient, any obligation, suit, liability,
cause of action, claim, either in favor of or against the Company; (viii) employ
employees, agents, attorneys, auditors, accountants, and depositories and to pay
fees, expenses, and other compensation to such persons; (ix) establish and
maintain reserves for such purposes and in such amounts as the Members deem
appropriate from time to time; (x) make appropriate elections permitted under
applicable tax law, provided, however, that such elections shall not in the
opinion of counsel to the Company or of the Accountants be disadvantageous to a
majority-in-interest of the Members; and (xi) engage in any kind of activity and
perform and carry out contracts of any kind necessary to, in connection with, or
incidental to, the accomplishment of the purposes of the Company, as may be
lawfully carried on or performed by a limited liability company under the laws
of the State of Delaware and in each state where the Company has qualified or
does business.
Section 4.4 Exclusive Duty to the Company. Each Member shall devote
his or its full business time and attention to the business of the Company.
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Section 4.5 Meetings of the Members.
Section 4.5.1 Procedures. Meetings of the Members may be
called by Members possessing, in the aggregate, at least a twenty (20%) percent
Interest in the Company. The notice shall state the place, date and time of the
meeting, and may, but shall not be required to, state the purpose of the meeting
and the business to be transacted. Notice of any such meeting shall be given to
all Members not less than ten (10) Business Days nor more than thirty (30)
Business Days prior to the date of such meeting. No notice of any meeting of
Members need be given to any Member who attends in person or is represented by
duly executed proxy, or to any Member entitled to such notice who, in a writing
executed and filed with the records of the meeting, either before or after the
time thereof, waives such notification. Members may vote in person, by proxy or
by telephone at such meeting and may waive advance notice of such meeting. The
presence in person or by proxy of a majority in interest of the Members shall
constitute a quorum for all meetings of the Members. Each meeting of Members
shall be held at the Company's principal place of business or at any other
location set forth in the notice thereof. At such meetings, the Members shall
transact such business as may properly be brought before the meeting, whether or
not notice of such meeting referenced the action taken at such meeting.
Section 4.5.2 Manner of Acting. If a quorum is present, the
affirmative vote of those Members holding a majority in interest present at the
meeting shall be the act of the Members.
Section 4.5.3 Record Date. For the purpose of determining
the Members entitled to notice of, or to vote at, any meeting of the Members or
any adjournment thereof, the Member calling the meeting may fix, in advance of
sending of the notice, a date as the record date for any such determination.
Such date shall not be more than thirty (30) days nor less than ten (10) days
before any such meeting.
Section 4.5.4 Proxies. Each Member may authorize any Person
or Persons to act for it by proxy on all matters in which a Member is entitled
to participate, including waiving notice of any meeting, or voting or
participating at a meeting. Every proxy must be signed on behalf of the Member
or by its attorney-in-fact. No proxy shall be valid after the expiration of
eleven (11) months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the direction of the Member executing it.
Section 4.5.5 Management of Meetings. A representative of
IMMUNOMEDICS shall preside at and conduct any meeting of the Members.
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Section 4.5.6 Meetings by Conference Telephone. Any action
required to be taken at a meeting of the Members may be taken at a meeting held
by means of conference telephone or other communications equipment by means of
which all Persons participating in the meeting can hear each other.
Participation in such a meeting shall constitute presence in person at such
meeting.
Section 4.5.7 Actions Without a Meeting. Any action required
or permitted to be taken at a meeting of the Members may be taken without a
meeting by written action signed by Members who possess the percentage Interests
equal to the percentage Interests that would be required to take the same action
at a meeting of the Members at which all Members were present. The written
action is effective when signed by Members possessing the required percentage
Interests, unless a different effective time is provided in the written action.
Section 4.6 Limitation of Liability. Except as otherwise required by
applicable law, no Member shall be personally liable for the debts, obligations
or liabilities of the Company, whether arising in tort, contract or otherwise,
solely by reason of being a Member. A Member shall be liable only to make his or
its initial Capital Contribution, and shall not be required to lend any funds to
the Company or, after his or its initial capital contribution shall have been
made, to make any further Capital Contributions to the Company or to repay any
Member, or any creditor of the Company all or any part of the negative balance
of his Capital Account, provided that a Member may be required to repay
distributions made to it as provided in Section 18-607 of the Act.
Section 4.7 Liability for Certain Acts. The Members shall exercise
their business judgment in managing the business, operations, and affairs of the
Company. Unless fraud, willful misconduct or gross negligence shall be proved by
a nonappealable court order, judgment, decree or decision, no Member shall be
liable or otherwise accountable in damages to the Company or any Member for any
mistake of fact or judgment or for the doing of any act or the failure to do any
act in conducting the business, operations and affairs of the Company, which may
cause or result in any loss or damage to the Company or to any Member. No Member
shall be deemed to have in any way guaranteed the return of the Members' Capital
Contributions or a profit for the Members from the operations of the Company,
and no Member shall be responsible to any Member because of a loss of such
Member's investment, unless such loss shall have been the result of fraud,
willful misconduct or gross negligence of such Member.
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Section 4.8 Reimbursement of Expenses; Compensation.
Section 4.8.1 The Company shall reimburse each Member for the
out of pocket expenditures he may incur in managing the business of the Company,
including, without limitation, travel and lodging expenses upon submission of
appropriate documentation expenses.
Section 4.8.2 No Member shall receive any interest, salary or
drawing with respect to his Capital Contributions or Capital Account or for
services rendered on behalf of the Company, or otherwise, in his capacity as a
Member, except as otherwise provided in this Agreement.
ARTICLE V
TRANSFERS; RESTRICTIONS ON TRANSFERS;
ADDITIONAL MEMBERS
Section 5.1 Transfer Procedures. Except as otherwise expressly provided
in this Agreement and subject in all respects to the other provisions of this
Article V, the transfer of any Interest upon the books of the Company shall be
accomplished only by the submission to the Company by the transferor or
transferee of a duly executed and acknowledged counterpart of the instrument
making such transfer together with such other instrument or instruments
signifying the transferee's agreement to be bound by all of the provisions of
this Agreement (including but not limited to all of the transferor's obligations
hereunder), all of the foregoing in such form and substance as shall be
reasonably satisfactory to the Company. If such instruments are not so
submitted, the Company need not recognize any such transfer as being effective
for any purpose.
Section 5.2 Restrictions on Transfers; Permitted Transfers.
Section 5.2.1 General Restrictions on Transfer. Except as
otherwise permitted by this Agreement, no Member shall Transfer any or all of
his or its Interest without the consent of all of the other Members.
Section 5.2.2 Permitted Transfers. Subject to compliance
with the provisions of this Agreement, any Member may voluntarily Transfer all
or any part of his or its Interest to any Permitted Transferee. Such Transfer
shall not be effective unless the transferring Member provides notice to the
Company setting forth (i) the identity of the transferee, and (ii) the
consideration, if any, paid for the Transferred Interest at least ten (10) days
before the effective date of the Transfer.
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Section 5.3 Transfers by IMMUNOMEDICS. IMMUNOMEDICS may at any time
Transfer all or any portion of its Interest pursuant to Section 5.1 for
consideration to an unaffiliated third party, subject to the following
provisions:
(i) Mandatory Sale by GOLDENBERG. In the event that
IMMUNOMEDICS intends to transfer its entire Interest to an unaffiliated third
party pursuant to the provisions of this Section 5.3, then upon the demand of
IMMUNOMEDICS, GOLDENBERG shall be required to sell to the proposed purchaser all
of his Interest, such sale to be made on the same terms, conditions and price
and at the same time as the proposed purchase from IMMUNOMEDICS.
(ii) Optional Sale by GOLDENBERG. Notwithstanding the
provisions set forth in paragraph (i) of this Section 5.3, in the event that
IMMUNOMEDICS receives and intends to transfer a portion of its Interest to an
unaffiliated third party pursuant to the provisions of this Section 5.3 and such
portion of its Interest is equal to or greater than fifty-one (51%) percent of
the total Interest of all Members, then as a condition to the closing of such
sale, the proposed purchaser shall be required to offer to purchase from
GOLDENBERG that same percentage of his Interest as the percentage obtained by
multiplying IMMUNOMEDICS' percentage Interest being sold times the entire
Interest then held by IMMUNOMEDICS.
Section 5.4 Transfers by GOLDENBERG.
Section 5.4.1 Purchase Option. If at any time GOLDENBERG
desires to Transfer all or any portion of his Interest other than to a Permitted
Transferee pursuant to Section 5.1 for consideration, he must in any event first
provide IMMUNOMEDICS an opportunity to purchase his Interest, or such portion
thereof, by notice, for consideration and upon other terms and conditions as
GOLDENBERG shall determine. IMMUNOMEDICS shall have sixty (60) days after the
mailing date of such notice in which to accept the offered Interest by written
notice to GOLDENBERG.
Section 5.4.2 Failure to Exercise Option. In the event that
IMMUNOMEDICS does not elect to purchase all or such portion of the Interest
offered by GOLDENBERG pursuant to Section 5.4.1, GOLDENBERG shall be free for a
period of one (1) year after the expiration of the sixty (60) day acceptance
period, to transfer all, but not less than all, of his offered Interest to any
prospective transferee for consideration and on such other terms and conditions
no more favorable to such transferee than those offered to IMMUNOMEDICS. If the
consideration or other terms or conditions offered to such transferee are more
favorable than those offered to IMMUNOMEDICS, GOLDENBERG must re-offer the
offered Interest to IMMUNOMEDICS pursuant to the provisions of Section 5.4.1. In
the event that a Transfer of the offered Interest is effected pursuant to this
Section 5.4.2, GOLDENBERG shall, within ten (10) days thereafter, certify to
IMMUNOMEDICS the identity of the transferee and that the consideration of such
Transfer was no more favorable than that offered to IMMUNOMEDICS.
Section 5.5 Repayment of Loans. Whenever the entire Interest of any
Member is purchased pursuant to the provisions of this Agreement, the purchasing
Member or third party may set off against the first payment to be made on
account of the purchase price of the Interest purchased hereunder the unpaid
balance of any indebtedness owing by such Member to the Company.
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Section 5.6 Additional Members. Additional Members may be admitted to
the Company upon (i) the unanimous written consent of all of the Members, which
consent may be granted or withheld in their sole discretion, and (ii) the
agreement of the new Member in writing to be bound by the terms of this
Agreement.
ARTICLE VI
DISSOLUTION AND WINDING UP
Section 6.1 Dissolution Events.
The Company shall dissolve and shall commence winding up and liquidating upon
the first to occur of any of the following events:
(i) 12:00 p.m. on December 31, 2050;
(ii) upon written notice from the Members of their desire to commence the
voluntary dissolution of the Company, in accordance with the terms of Section
5.3.3; or
(iii) the entry of a decree of judicial dissolution under Section 18-802 of the
Act.
The death, retirement, resignation, expulsion or Bankruptcy of a Member
or the occurrence of any other event which terminates the continued membership
of a Member in the Company shall not result in the dissolution or liquidation of
the Company and the business of the Company shall continue notwithstanding the
occurrence of such event. The foregoing sentence shall be deemed to be a stated
right to continue by the Company in conformity with Section 18-801(b) of the
Act. Notwithstanding any provision of the Act, the Company shall not dissolve
prior to the occurrence of a Dissolution Event.
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ARTICLE VII
REMEDIES FOR BREACH
Section 7.1 Specific Enforcement. All breaches of this Agreement are
subject to specific enforcement, without prejudice to the right to seek damages
or other remedies.
Section 7.2 Attorneys Fees and Expenses. If the Company resorts to
litigation to remedy a breach of this Agreement by a Member or former Member and
the Company prevails in the litigation, in addition to any other remedies
available to the Company under this Agreement or by law, the Company may collect
its reasonable attorneys fees and expenses of litigation from such Member.
ARTICLE VIII
AMENDMENTS
Members possessing at least a majority-in-interest of the Company may,
without prior notice to or consent of any other Member, amend any provision of
this Agreement; provided, however, that no amendment that has the effect of
increasing the liability of any Member or adversely affecting any Member's
interest in the income, gain or loss of the Company or in cash distributions by
the Company may become effective unless affirmatively consented to by all
Members who would be adversely affected thereby. Written notice of any amendment
to this Agreement effected pursuant to this Article VIII shall be sent to all
Members within a reasonable period of time after its adoption.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices. All notices permitted or required to be given by
this Agreement shall be in writing and shall be deemed to be duly given if given
personally with receipt acknowledged or sent, by registered or certified mail,
return receipt requested, or by fax, or by overnight courier for next day
delivery, addressed to the Company at its principal office, and addressed to the
respective Members at their addresses set forth on the schedule annexed hereto
as Exhibit A, unless notice in writing is given of a change of address in the
manner set forth herein, in which case notices shall be sent to the new address
so designated. Notice of change of address shall be deemed given when actually
received or upon refusal to accept delivery thereof; all other notices shall be
deemed given and received on the earlier of (i) the date when actually received
or upon refusal to accept delivery thereof, or (ii) on the date when personally
delivered, one (1) day after being sent by telex, fax or overnight courier and
three (3) days after mailing, as aforesaid.
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Section 9.2 Consents. Any consent required under the Agreement must
be in writing.
Section 9.3 Binding Effect. Subject to the restrictions on transfer
set forth herein, this Agreement shall be binding upon, and inure to the benefit
of, the parties hereto and their successors and assignors.
Section 9.4 Further Actions. Each of the Members shall hereafter
execute and deliver such further instruments, including written powers of
attorney, and perform such further acts as may be required to carry out the
intent and purposes of the Agreement.
Section 9.5 Headings and Captions. All headings and captions
contained in the Agreement and the table of contents hereto are inserted only as
a matter of convenience and in no way define, limit, extend, or describe the
scope of this Agreement or the intent of any provision hereof.
Section 9.6 Relationship of this Agreement to the Default Rules.
Regardless of whether this Agreement specifically refers to particular Default
Rules, (i) if any provision of this Agreement conflicts with a Default Rule,
such provision shall control and the Default rule shall be modified or negated
accordingly; and (ii) if it is necessary to construe a Default Rule as modified
or negated in order to effectuate any provision of this Agreement, such Rule
shall be modified or negated accordingly.
Section 9.7 Relationship of this Agreement and the Certificate of
Formation. If a provision of this Agreement differs from a provision of the
Certificate of Formation, then to the extent allowed by law this Agreement will
govern.
Section 9.8 Counterparts. This Agreement may be executed in one or
more counterparts and all such counterparts shall constitute one Agreement
binding on all the parties notwithstanding that all the parties are not
signatories to the original or the same counterpart.
Section 9.9 Creditors and Other Third Parties. None of the provisions
of this Agreement are made for the benefit of, or shall be enforceable by, any
creditor of the Company or any other Person who is not a Member.
Section 9.10 Governing Law. This Agreement shall, except as otherwise
expressly provided herein, be governed by, and construed in accordance with, the
laws of the State of Delaware without regard to the conflict of laws provisions
thereof.
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Section 9.11 No Waiver. The failure of any party to insist upon strict
performance of any provision hereof, irrespective of the length of time for
which such failure continues, shall not be a waiver of such party's right to
demand strict compliance in the future, and no consent or waiver, express or
implied, to any breach or default in the performance of any obligation hereunder
shall constitute a consent or waiver to any other breach or default in the
performance of the same or any other obligation hereunder.
Section 9.12 Integration. This Agreement constitutes the entire
agreement among the parties with respect to the Company, superseding all oral
and written, prior or contemporaneous agreements, discussions, negotiations, or
understandings.
Section 9.13 Severability. If any provision of this Agreement, or the
application to any party or circumstance, shall be determined by a court of
competent jurisdiction to be invalid or unenforceable to any extent, the
remainder of this Agreement, or the application of such provision to such Person
or circumstance, other than those as to which it is so determined to be invalid
or unenforceable, shall not be affected thereby, and each provision hereof shall
be valid and shall be enforced to the fullest extent permitted by law.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
IMMUNOMEDICS, INC.
By: ________________________
Name: Robert J. DeLuccia
Title: Chief Executive Officer
IMG TECHNOLOGY, LLC
BY: IMMUNOMEDICS, INC.,
its sole Member
By: ________________________
Name: Robert J. DeLuccia
Title: Chief Executive Officer
___________________________
DAVID M. GOLDENBERG
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ADDENDUM
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions. When used in this Addendum to that certain
Operating Agreement of IMG TECHNOLOGY, LLC, dated as of February 25, 1999 (the
"Agreement"), and in the Agreement itself, capitalized terms used herein shall
have the meanings set forth below in this Section, unless the context otherwise
requires. Capitalized terms used herein but not otherwise defined herein shall
have the meaning set forth in the Agreement.
"Adjusted Capital Account Deficit" means, with respect to any Member at
the close of any Fiscal Year, the deficit balance in such Member's Capital
Account at such time (determined by (i) crediting to such Capital Account (x)
the amount of such Member's Deficit Restoration Obligation at that time and (y)
the amount such Member is deemed to be obligated to restore under the
penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the
Treasury Regulations at such time (determined after taking into account any
changes in the Company Minimum Gain and Member Minimum Gain of the Company
during such Fiscal Year); and (ii) charging to such Capital Account (x) any
adjustments described in Section 1.704-1(b)(2)(ii)(d)(4) of the Treasury
Regulations that, at such time, are reasonably expected to be made to such
Member's Capital Account, (y) any allocations described in Section
1.704-1(b)(2)(ii)(d)(5) of the Treasury Regulations that, at such time, are
reasonably expected to be made to such Member, and (z) any distributions
described in Section 1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations that,
at such time, are reasonably expected to be made to such Member).
"Capital Account" means the capital account established on the books of
the Company for each Member in accordance with the provisions of Section 2.1.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time (or any corresponding provision or provisions of any subsequent federal
revenue law).
"Company Minimum Gain" means, at the close of any Fiscal Year, the
minimum gain of the Company (determined in accordance with Section 1.704-2(i)(2)
of the Treasury Regulations).
"Deficit Restoration Obligation" means, with respect to any Member at
the end of any Fiscal Year, the amount such Member is obligated to restore under
applicable law or pursuant to any provision of this Agreement on account of a
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deficit balance in such Member's Capital Account or is deemed obligated to
restore under Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury
Regulations (determined after taking into account any changes in the Minimum
Gain and the Member Minimum Gain during such Fiscal Year).
"Liquidator" means the Person appointed by the Members pursuant to
Section 6.7 to oversee the liquidation of the Company.
"Loss" means, for any Fiscal Year, an amount equal to the Company's
loss for such year, determined in accordance with Section 5.1.
"Member Minimum Gain" means an amount, with respect to each Member
Nonrecourse Debt, equal to the Company Minimum Gain that would result if such
Member Nonrecourse Debt were treated as a Nonrecourse Liability (determined in
accordance with Section 1.704-2(i)(3) of the Treasury Regulations.
"Member Nonrecourse Debt" means any liability of the Company that is a
partner nonrecourse debt (as that term is defined by Section 1.704-2(b)(4) of
the Treasury Regulations).
"Member Nonrecourse Deductions" means, for any Fiscal Year, the partner
nonrecourse deductions of the Company for such Year (determined in accordance
with Section 1.704-2(i)(2) of the Treasury Regulations).
"Net Cash Flow" means, for any Fiscal Year, the sum of (x) the excess
of (A) the gross cash proceeds received by the Company in such Fiscal Year
(including the net cash proceeds from all sales and other dispositions, but
excluding cash proceeds received from all borrowings or refinancing of assets),
over (B) the portion of such proceeds used in such Fiscal Year to pay or
establish reserves for expenses, capital improvements, debt repayments,
replacements and contingencies, and (y) any reductions in such Fiscal Year of
previously established reserves.
"Nonrecourse Deductions" means, for any Fiscal Year, the nonrecourse
deductions of the Company for such Year (determined in accordance with Section
1.704-2(b)(1) of the Treasury Regulations).
"Nonrecourse Liability" means a liability of the Company that is a
nonrecourse liability (as that term is defined in Section 1.704-2(b)(3) of the
Treasury Regulations).
"Profit" means, for any Fiscal Year, the amount equal to the Company's
profit for such year, determined in accordance with Section 3.2.
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"Regulatory Allocations" means, collectively, the allocations set
forth in Section 3.5.
"Service" means the Internal Revenue Service.
"Treasury Regulations" means the official Treasury Department
interpretation of the Code found in Title 26 of the Code of Federal Regulations.
Section 1.2 Rules of Construction. Unless the context otherwise
requires, (i) a term shall have the meaning assigned to it in Section 1.1; (ii)
an accounting term not otherwise defined shall have the meaning assigned to it
in accordance with generally accepted accounting principles; (iii) "or" shall
not be exclusive; (iv) words in the singular shall include the plural, and vice
versa; (v) words in the masculine gender shall include the feminine and neuter,
and vice versa; and (vi) any reference to an "Article" or "Section," if not
otherwise modified, shall be a reference to an Article or Section of this
Addendum.
ARTICLE II
CAPITAL STRUCTURE; CAPITAL ACCOUNTS
Section 2.1 Establishment. A single Capital Account shall be
established on the books of the Company for each Member. Initial Capital
Accounts shall be as set forth on Exhibit B.
Section 2.2 Maintenance of Capital Accounts. The Capital Account
established for any Member shall be maintained in accordance with the following
rules.
Section 2.2.1 Basic Rules. The Capital Account established for
any Member shall be (i) credited with (A) such Member's Capital Contributions,
(B) such Member's allocable share of Profits and any items in the nature of
income or gain that are specially allocated pursuant to Section 3.3, and (C) the
amount of any Company liabilities assumed by such Member or which are secured by
any property distributed to such Member by the Company; and (ii) charged with
(A) the amount of money and the gross fair market value of any property
distributed to such Member pursuant to any provision of this Agreement, (B) such
Member's allocable share of Losses and any items in the nature of expense or
loss that are specially allocated pursuant to Section 3.3 of the Addendum, and
(C) the amount of such Member's liabilities assumed by the Company or that are
secured by any property contributed to the Company by such Member.
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Section 2.2.2 Treatment of Liabilities. The amount of any
liability shall be determined for purposes of this Section 2.2 taking into
account Section 752(c) of the Code and any other applicable provisions of the
Code and the Treasury Regulations.
Section 2.2.3 Treatment of Certain Promissory Notes. If a
promissory note (other than a note that is readily tradeable on an established
securities market) is contributed to the Company by the person who is the maker
of such note, such person's Capital Account shall be credited on account of the
contribution of such note only when there is a taxable disposition of such note
by the Company or when the maker makes principal payments on such note.
Section 2.3 Revaluations of Property. The book values of all Company
assets shall be adjusted to their respective gross fair market values as of the
following times: (i) the acquisition of an additional interest in the Company by
any new or existing Member in exchange for more than a de minimis amount of
money or other property; (ii) the distribution by the Company to a Member of
more than a de minimis amount of money or other property as consideration for an
interest in the Company; and (iii) the liquidation of the Company within the
meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury Regulations, provided,
however, that adjustments made at the times described in clauses (i) and (ii)
hereof shall be made only if the Members reasonably determine that such
adjustments are necessary or appropriate to reflect the relative economic
interests of the Members. The Members shall determine the gross fair market
values of all Company assets pursuant to this Section 2.3.
Section 2.4 Certain Other Adjustments to Book Values of Property. The
gross fair market value of all Company assets shall be adjusted to reflect any
adjustments to the tax bases of such assets pursuant to Section 743(b) or
Section 734(b) of the Code, but only to the extent that such adjustments are
taken into account in determining Capital Accounts pursuant to Section
1.704-1(b)(2)(iv)(m) of the Treasury Regulations and Section 3.1(vii) or Section
3.5.5; provided, however, that such gross fair market value shall not be
adjusted pursuant to this Section 2.4 to the extent an adjustment pursuant to
Section 2.3 is required in connection with a transaction that would otherwise
result in an adjustment pursuant to this Section 2.4.
Section 2.5 Compliance with Applicable Treasury Regulations. The
provisions of this Article II are intended to comply with Section 1.704-1(b) of
the Treasury Regulations and shall be interpreted and applied in a manner
consistent with such provision. In the event that the Members holding a majority
of the percentage Interest in the Company, after consultation with the
Accountants, determine that it is prudent to modify the manner in which Capital
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Accounts, or any credits or charges thereto are computed in order to comply with
such Section, they may make such modification, provided it is not likely to have
a material effect on the amounts distributable to any Member pursuant to Section
6.1 upon liquidation of the Company. The Company shall (i) after consultation
with the Accountants, make any adjustments that it deems necessary or
appropriate to maintain equality between the Capital Accounts of the Members and
the amount of Company capital reflected on the Company's balance sheet, as
computed for book purposes, in accordance with Section 1.704-1(b)(2)(iv)(q) of
the Treasury Regulations; and (ii) make any other appropriate modifications in
the event unanticipated events might otherwise cause this Agreement not to
comply with Section 1.704-1(b) of the Treasury Regulations.
Section 2.6 Transfers of Interests. If in any Fiscal Year a Member
transfers any or all of its Interest, then such Member's Capital Account (or the
portion thereof attributable to the transferred Interest) shall carry over to
the transferee. If such transfer causes a termination of the Company for federal
income tax purposes, the constructive reformation of the Company shall, for
purposes of this Article II, be treated as the formation of a new limited
liability company and the Capital Accounts of the Members shall be determined
and maintained accordingly.
ARTICLE III
COMPUTATION AND ALLOCATION
OF
FINANCIAL AND TAX ITEMS
Section 3.1 Computation of Profit and Loss. The Profit (or Loss) of
the Company for any Fiscal Year shall be an amount equal to the Company's
taxable income (or loss) for such Fiscal Year (computed in accordance with
Section 703(a) of the Code), with the following adjustments:
(i) any income of the Company for such Fiscal Year that is
exempt from federal income tax and not otherwise taken into account in computing
Profit (or Loss) under this Section 3.1 shall be added to such taxable income
(or loss);
(ii) any expenditure described in Section 705(a)(2)(B) of the
Code for such Fiscal Year not otherwise taken into account in computing Profit
(or Loss) under this Section 3.1 shall be subtracted from such taxable income
(or loss);
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(iii) in the event the book value of any asset is adjusted
pursuant to Section 2.3, the amount of such adjustment shall be taken into
account as gain or loss from the disposition of such asset for purposes of
computing the Profit (or Loss);
(iv) any gain or loss resulting from the disposition during
such Fiscal Year of any asset (in a taxable transaction) shall be computed by
reference to the book value of such asset;
(v) in lieu of the depreciation (or cost recovery) or
amortization with respect to any asset taken into account in computing such
taxable income (or loss), there shall be taken into account depreciation (or
cost recovery) or amortization in respect of such asset determined by applying
the method used by the Company for federal income tax purposes with respect to
such asset to the book value of such asset (or if the tax basis of such asset is
zero at the beginning of such Fiscal Year, by applying any reasonable method
selected by the Members);
(vi) any items in the nature of income, gain, expense or loss
that are specially allocated pursuant to Sections 3.4 or 3.5 shall not be taken
into account; and
(vii) to the extent an adjustment to the tax basis of any
Partnership asset pursuant to Section 734(b) or Section 743(b) of the Code is
required pursuant to Section 1.704-1(b)(2)(iv)(m)(4) of the Treasury Regulations
to be taken into account in determining Capital Accounts as a result of a
distribution other than in complete liquidation of a Member's interest, the
amount of such adjustment shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases the basis
of the asset) from the disposition of the asset and shall be taken into account
in computing Profit (or Loss).
The amount of the items in the nature of income, gain, expense or loss available
to be specially allocated pursuant to Section 3.4 and Section 3.5 shall be
determined by applying rules analogous to those set forth in this Section 3.1.
Section 3.2 Allocation of Profit.
Section 3.2.1 Operating Profit. Profits for any Fiscal Year
(determined without taking into account any item of gain attributable to the
sale or exchange of any asset by the Company or by IBC Pharmaceutical [other
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than a sale or exchange made in the ordinary course of business]) shall be
allocated to the Members as follows:
(i) first, to the Members in proportion to and to the extent
of the excess, if any, of (x) the aggregate amount of Loss allocated to each
such Member for all prior Fiscal Years pursuant to Section 3.3.2, over (y) the
aggregate amount of Operating Profit allocated to such Member pursuant to this
Section 3.2.1(i) for all prior Fiscal Years and the aggregate amount of gain
allocated to such Member pursuant to Section 3.2.2(i) for all prior Fiscal
Years; and
(ii) second, to the Members in proportion to and to the
extent of the excess, if any, of (x) the aggregate amount of Loss allocated to
each such Member for all prior Fiscal Years pursuant to Section 3.3.1, over (y)
the aggregate amount of Operating Profit allocated to such Member pursuant to
this Section 3.2.1(ii) for all prior Fiscal Years; and
(iii) the remainder, eighty (80%) percent to IMMUNOMEDICS and
twenty (20%) percent to GOLDENBERG.
Section 3.2.2 Gain on Disposition. Any item of gain that is
taken into account in computing Profit for any Fiscal Year that is attributable
to the sale or exchange of any asset by the Company or by IBC Pharmaceutical
(other than a sale or exchange made in the ordinary course of business) shall be
allocated as follows:
(i) first, to the Members in proportion to and to the extent
of the excess, if any, of (x) the aggregate amount of Loss allocated to such
Member pursuant to Section 3.3.2 for all Fiscal Years (including the current
Fiscal Year), over (y) the sum of the aggregate amount of Operating Profits
allocated to such Member pursuant to Section 3.2.1(i) for all prior Fiscal Years
and the aggregate amount of gain allocated to such Member pursuant to this
Section 3.2.2(i) for all prior Fiscal Years;
(ii) then to GOLDENBERG until the aggregate amount of gain
allocated to him pursuant to this Section 3.2.2(ii) with respect to such asset
equals twenty-five (25%) percent of the book value of such asset at the time of
sale or exchange, provided that the aggregate amount of gain allocated to
GOLDENBERG pursuant to this Section 3.2.2(ii) does not exceed $4,662,000; and
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(iii) the remainder, eighty (80%) percent to IMMUNOMEDICS and
twenty (20%) percent to GOLDENBERG.
Section 3.3 Allocation of Loss.
Section 3.3.1 General Rule. Loss for any Fiscal Year shall be
allocated eighty percent to IMMUNOMEDICS and twenty (20%) percent to GOLDENBERG.
Section 3.3.2 Special Limitation. Loss allocated to the
Members for any Fiscal year pursuant to Section 3.3.1 shall not exceed the
maximum amount of such Loss that can be so allocated without causing any Member
to have an Adjusted Capital Account Deficit at the end of such Fiscal Year. In
the event some but not all of the Members would have such Adjusted Capital
Account Deficits as a consequence of an allocation of Loss for a Fiscal Year
pursuant to Section 3.3.1, the limitation set forth in the first sentence of
this Section 3.3.2 shall be applied so as to allocate the maximum permissible
amount of such Loss to each Member under Section 1.704-1(b)(2)(ii)(d) of the
Treasury Regulations.
Section 3.4 Unanticipated State of Facts. If an unanticipated state of
facts arises (including a change in the federal income tax treatment of company
allocations), the allocations and determinations governed by this Article III
shall be made by the Members so as to carry out as nearly as practicable the
purposes of this Article III, namely, to give cumulative recognition when
allocating tax items to differences between the Fiscal Year in which a
transaction or item is recognized for purposes of determining Profit or Loss and
the taxable year in which it affects taxable income.
Section 3.5 Special Allocations. The following special allocations
shall be made in the following order:
Section 3.5.1 Minimum Gain Chargeback. Except as otherwise
provided by Section 1.704-2(f) of the Treasury Regulations, if there is a net
decrease in the Company Minimum Gain during any Fiscal Year, there shall be
allocated to each Member (before any other allocation is made under this Section
3.5) items of income and gain for such Fiscal Year (and, if necessary,
subsequent periods) in proportion to, and to the extent of, an amount equal to
such Member's share of the net decrease in Company Minimum Gain during such
Fiscal Year (determined in accordance with Section 1.704-2(g) of the Treasury
Regulations). The items to be allocated for any Fiscal year under this Section
3.5.1 shall be determined in accordance with Section 1.704-2(j)(2) of the
Treasury Regulations.
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Section 3.5.2 Member Minimum Gain Chargeback. Except as
otherwise provided by Section 1.704-2(i)(4) of the Treasury Regulations, if
during any Fiscal Year there is a net decrease in the Member Minimum Gain
attributable to a Member Nonrecourse Debt, there shall be allocated (before any
allocation for such Fiscal Year is made under this Section 3.5 (other than
Section 3.5.1)) to each Member with a share of the Member Minimum Gain
attributable to such Member Nonrecourse Debt (as determined under Section
1.704-2(i)(5) of the Treasury Regulations) items of income and gain for such
Fiscal Year (and, if necessary, for subsequent Fiscal Years) in proportion to,
and to the extent of such Member's share of the net decrease during such Fiscal
Year in the Member Minimum Gain attributable to such Member Nonrecourse Debt
(determined under Section 1.704-2(i)(4) of the Treasury Regulations). The items
to be allocated for any Fiscal Year under this Section 3.5.2 shall be determined
in accordance with Section 1.704-2(j)(2) of the Treasury Regulations.
Section 3.5.3 Qualified Income Offset. If any Member
unexpectedly receives any adjustments, allocations or distributions described in
Section 1.704-1(b)(2)(ii)(d)(4), Section 1.704-1(b)(2)(ii)(d)(5) or Section
1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations during any Fiscal Year,
there shall be allocated (before any allocation is made under this Section 3.5
(other than Sections 3.5.1 or Section 3.5.2)) to such Member items of Company
income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal
Years) in an amount and manner sufficient to eliminate, to the extent required
by the Treasury Regulations, the Adjusted Capital Account Deficit of such Member
as quickly as possible, provided that an allocation pursuant to this Section
3.5.3 shall be made only if and to the extent that such Member would have an
Adjusted Capital Account Deficit after all other allocations provided in this
Section 3.5 have been tentatively made as if this Section 3.5.3 were not in the
Agreement. Any allocation of income or gain for any Fiscal Year made under this
Section 3.5.3 shall consist of a pro rata portion of each item of Company income
(including gross income) and gain for such period (other than income or gain for
such period allocated under Sections 3.5.1 or 3.5.2).
Section 3.5.4 Gross Income Allocation. If there is a deficit
balance in the Capital Account of any Member at the end of any Fiscal Year which
is in excess of the amount of such Member's Deficit Restoration Obligation at
that time, each such Member shall be specially allocated items of Company income
and gain in the amount of such excess as quickly as possible, provided that an
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allocation to the Capital Account of a Member pursuant to this Section 3.5.4
shall be made only if and to the extent that such Member would have an Adjusted
Capital Account Deficit in excess of such Deficit Restoration Obligation after
all other allocations provided for in this Section 3.5 have been made as if
Section 3.5.3 and this Section 3.5.4 were not in the Agreement.
Section 3.5.5 Section 754 Adjustments. To the extent an
adjustment to the tax basis of any Company asset pursuant to Section 734(b) or
Section 743(b) of the Code is required pursuant to Section
1.704-1(b)(2)(iv)(m)(2) or Section 1.704-1(b)(2)(iv)(m)(4) of the Treasury
Regulations to be taken into account in determining Capital Accounts as the
result of a distribution to a Member in complete liquidation of such Member's
Interest or as the result of the sale of a Member's Interest, the amount of such
adjustment to Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) and such gain or loss shall be specially allocated to the
Members in accordance with their interests in the Company in the event Section
1.704-1(b)(2)(iv)(m)(2) of the Treasury Regulations applies, or to the
distributee in the event Section 1.704-1(b) (2)(iv)(m)(4) of the Treasury
Regulations applies.
Section 3.5.6 Nonrecourse Deductions. Nonrecourse Deductions
for any Fiscal Year shall be allocated as determined by the Members in a manner
that is consistent with the principles of Sections 1.704-1 and 1.704-2 of the
Treasury Regulations.
Section 3.5.7 Member Nonrecourse Deductions. Any Member
Nonrecourse Deductions for any Fiscal Year shall be allocated to the Member who
bears the economic risk of loss with respect to the Member Nonrecourse Debt to
which such Member Nonrecourse Deductions are attributable in accordance with
Section 1.704-2(i)(1) of the Treasury Regulations.
Section 3.6 Curative Allocations. All Regulatory Allocations shall be
offset either with other Regulatory Allocations or with special allocations of
items in the nature of income, gain, expense, or loss pursuant to this Section
3.6. The Company shall make such offsetting special allocations in its
discretion so that, after such offsetting allocations are made, each Member's
Capital Account balance is, to the extent possible, equal to the Capital Account
balance such Member would have had if the Regulatory Allocations were not part
of the Addendum and all Company items were allocated pursuant to Section 3.2 and
Section 3.3 of the Agreement. In exercising its discretion under this Section
3.6, the Company shall take into account future Regulatory Allocations that,
although not yet made, are likely to offset other Regulatory Allocations
previously made.
Section 3.7 Allocation of Tax Items. For federal and state income tax
purposes, Company income gain, loss, deduction and credit (or items thereof) for
any Fiscal Year shall be allocated as follows:
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Section 3.7.1 General Rule. Except as provided in Sections
3.7.2, 3.7.3 and 3.7.4, all items of income, gain, loss, deduction and credit
shall be allocated in the same manner as the correlative items are allocated
under Sections 3.2 and 3.3.
Section 3.7.2 Section 704(c) Considerations. Items of income,
gain, loss and deduction with respect to any asset contributed to the capital of
the Company shall, solely for income tax purposes, be allocated among the
Members so as to take account of any variation between the adjusted basis of
such asset to the Company for federal income tax purposes and the gross fair
market value of such asset at the time of contribution. In the event the book
value of any asset contributed to the capital of the Company is revalued on the
Company's books, subsequent allocations of income, gain, loss and deduction with
respect to such asset shall take account of any variation between the adjusted
basis of such asset to the Company for federal income tax purposes and the book
value of such asset immediately following such revaluation in the same manner as
under Section 704(c) of the Code and the Treasury Regulations thereunder. Any
elections or other decisions relating to allocations made pursuant to this
Section 3.7.2 shall be made by the Members in any manner that reasonably
reflects the purposes and intentions of this Agreement.
Section 3.7.3 Recapture Income. For purposes of deter-mining
the character (as ordinary income or capital gain) of any taxable income of the
Company, such portion of the taxable income of the Company which is treated as
ordinary income attributable to the recapture of depreciation (or cost recovery)
shall, to the extent possible, be allocated among the Member (or their
successors in interest) in the same proportions that the depreciation (or cost
recovery) deductions directly or indirectly giving rise to such income were
previously allocated. This Section 3.7.3 shall not alter the amount of
allocations to any Member but merely the character of income so allocated.
Section 3.7.4 Transfers of Company Interests. If during any
taxable year of the Company there is a change in any Member's interest in the
Company, then each Member's distributive share of each item of Company income,
gain, loss and deduction shall be determined for federal income tax purposes as
if the taxable year of the Company closed on the date of such change. For
purposes of this Section 3.7.4, a transfer of an interest in the Company made
during the first fifteen (15) days of any calendar month will be deemed to have
been effected at the opening of month, and a transfer made after the fifteenth
day of any calendar month will be deemed to have been effected at the opening of
the following month.
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ARTICLE IV
DISTRIBUTIONS
Section 4.1 Distributions. Except as otherwise provided by Section
6.1,
Section 4.1.1 Distributable. Distributable cash (as the same
is determined by the Company at its sole discretion) at the close of any Fiscal
Year shall be distributed eighty (80%) percent to IMMUNOMEDICS and twenty (20%)
percent to GOLDENBERG.
Section 4.1.2 Special Limitation. Distributions made pursuant
to Section 4.1.1 shall not exceed the maximum amount that can be so made without
causing any Member to have an deficit Capital Account balance. In the event some
but not all of the Members would have such deficits as a consequence of a
distribution pursuant to Section 4.1.1, the limitation set forth in the first
sentence of this Section 4.1.2 shall be applied on a Member-by-Member basis so
as to distribute the maximum permissible amount to each Member.
Section 4.2 [ Intentionally Omitted ]
Section 4.3 Amounts Withheld.
Section 4.3.1 Amounts Withheld on Behalf of Governmental
Authority. All amounts withheld pursuant to the Code and the Treasury
Regulations or any provision of any state or local tax law or the law of any
foreign country or subdivision thereof with respect to any payment,
distribution, or allocation to the Company or the Members shall be treated as
amounts distributed to the Members pursuant to Section 4.1 or Section 4.2 for
all purposes under this Agreement. The Company is authorized to withhold from
distributions, or with respect to allocations, to the Members and to pay over to
any federal, state, or local government or foreign government or any subdivision
thereof any amounts required to be so withheld pursuant to the Code or any
provisions of any other federal, state, or local law or the law of any foreign
country or subdivision thereof and shall allocate such amounts to the Members
with respect to which such amount was withheld.
Section 4.4 Liability for Distributions. A Member who receives a
distribution for the Company shall have no liability under the Act or any other
applicable law for the amount of the distribution after the expiration of six
(6) years from the date of the distribution unless an action to recover the
distribution from such member is commenced prior to the expiration of such six-
(6-) year period and an adjudication of liability against such Member is made in
such action.
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Section 4.5 Distributions in Kind. The Company shall have the right
to compel a Member to accept a distribution of any asset in kind, whether or not
the percentage of the asset distributed to it exceeds a percentage of that asset
which is equal to the percentage in which it shares in distributions from the
Company.
ARTICLE V
BOOKS OF ACCOUNT;
FINANCIAL STATEMENTS; FISCAL MATTERS
Section 5.1 Accounting, Books and Records.
Section 5.1.1 Required Records. The Members shall keep on
site at the principal place of business of the Company each of the following:
(i) separate books of account for the Company which shall
show a true and accurate record of all costs and expenses incurred, all charges
made, all credits made and received, and all income derived in connection
therewith and the operation thereof accordance with this Agreement;
(ii) a current list of the full name and last known business,
residence, or mailing address of each Member, both past and present;
(iii) a copy of the Articles of Organization and all
amendments thereto, together with executed copies of any powers of attorney
pursuant to which any amendment has been executed;
(iv) copies of the Company's federal, state, and local income
tax returns and reports, if any, for the three most recent years;
(v) copies of this Agreement; and
(vi) any minutes of meetings of the Members and any written
consents obtained from Members pursuant to Section 407 of the Act and the
Agreement regarding action taken by Members without a meeting.
Section 5.1.2 Accounting Matters. The books of account of
the Company shall be kept on a calendar year basis in accordance with generally
accepted accounting principles. The Company shall, to the extent permitted by
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the Code, compute its income (and items thereof) for federal income tax purposes
on the basis of the calendar year using the cash method of accounting.
Section 5.1.3 Access to Records. After giving reasonable
advance written notice to the Company stating under oath the purpose thereof,
any Member may inspect and review the Company Records for any proper purpose and
may, at the Member's expense, have the Company make copies of any portion or all
of the Company Records. A proper purpose shall mean a purpose reasonably related
to such person's interest as a Member. Unless the Company agrees otherwise, all
Member access to the Company Records must take place during the Company's
regular business hours. The Company may impose additional reasonable conditions
and restrictions on Members' access to the Company Records, including specifying
the amount of advance notice a Member must give and the charges imposed for
copying.
Section 5.2 Reports.
Section 5.2.1 Generally. The Treasurer of the Company shall
be responsible for causing the preparation of financial reports of the Company
and the coordination of financial matters of the Company with the Accountants.
Section 5.2.2 Annual Reports. Within one hundred eighty (180)
days after the close of each Fiscal Year, the Company shall send to each Person
who was a Member at any time during the Fiscal Year then ended the consolidated
balance sheet of the Company as of the close of such Year and the related
consolidated statements of income, changes in Members' equity and changes in
financial position for such Fiscal Year. Such consolidated balance sheets and
statements need not be audited.
Section 5.3 Tax Matters.
Section 5.3.1 Tax Elections. IMMUNOMEDICS shall, without any
further consent of the Members being required, make any and all elections for
federal, state, local, and foreign tax purposes, including any election, if
permitted by applicable law (i) to adjust the basis of the Company's assets
pursuant to Sections 754, 734(b) and 743(b) of the Code (or comparable
provisions of state, local or foreign law); (ii) to extend the statute of
limitations for assessment of tax deficiencies against the Members with respect
to adjustments to the Company's federal, state, local or foreign tax returns;
and (iii) to the extent provided in Sections 6221 through 6231 of the Code and
similar provisions of federal, state, local, or foreign law, to represent the
Company and the Members before taxing authorities or courts of competent
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jurisdiction in tax matters affecting the Company or the Members in their
capacities as Members, and to file any tax returns and execute any agreements or
other documents relating to or affecting such tax matters, including agreements
or other documents that bind the Members with respect to such tax matters or
otherwise affect the rights of the Company and the Members.
Section 5.3.2 Tax Information. The Company shall use its best
efforts to send, within ninety (90) days after the close of each Fiscal Year, to
each Person who was a Member at any time during the Fiscal Year then ended, such
tax information (including a Schedule K-1) as shall be necessary for the
preparation by such Person of his or her federal and state income tax returns,
and any other tax return required by any jurisdiction in which the Company is
formed or qualified to conduct business.
Section 5.4 Tax Matters Partner. IMMUNOMEDICS shall serve as the tax
matters partner of the Company within the meaning of Section 6231(a)(7) of the
Code and the Treasury Regulations promulgated thereunder for purposes of
representing the Company in administrative proceedings relating to the federal
income tax treatment of items of Company income, gain, loss, deduction, or
credit. In its capacity as the tax matters partner of the Company, such Member
shall have all authority granted to a tax matters partner by the Code and shall
have the right, at Company expense, to retain professional assistance in
connection with any audit of the Company by the Service.
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ARTICLE VI
TAX AND FINANCIAL CONSEQUENCES
OF DISSOLUTION OF THE COMPANY
Section 6.1 Winding Up. Upon the occurrence of a Dissolution Event, the
Company shall continue solely for the purposes of winding up its affairs in an
orderly manner, liquidating its assets, and satisfying the claims of its
creditors and Members, and no Member shall take any action that is inconsistent
with, or not necessary to or appropriate for, the winding up of the Company's
business and affairs, provided that all covenants contained in the Agreement and
this Addendum and obligations provided for in the Agreement and this Addendum
shall continue to be fully binding upon the Members until such time as all of
the Company's assets have been distributed pursuant to this Section 6.1 and the
Articles of Dissolution have been filed in accordance with the Act. The Members
shall be responsible for supervising the winding up and dissolution of the
Company, which winding up and dissolution shall be completed as expeditiously as
possible. The Members shall take full account of the Company's liabilities and
assets and shall cause its assets or the proceeds from the sale thereof (as
determined pursuant to Section 6.8), to the extent sufficient therefor, to be
applied and distributed, to the maximum extent permitted by law, in the
following order:
(i) first, to creditors (including Members who are creditors,
to the extent otherwise permitted by law) in satisfaction of all of the
Company's debts and other liabilities (whether by payment or the making of
reasonable provision for payment thereof), other than liabilities for which
reasonable provision for payment has been made and liabilities for distribution
to members under Section 507 or Section 509 of the Act;
(ii) second, except as provided in this Agreement, to Members
and former Members of the Company in satisfaction of liabilities for
distribution under Sections 507 or 509 of the Act; and
(iii) the balance, if any, to the Members in accordance with
the positive balance in Capital Accounts, after giving effect to all
contributions, distributions and allocations for all periods.
No Member shall receive additional compensation for any services performed
pursuant to this Section 6.1.
Section 6.2 Compliance with Certain Requirements of Regulations;
Deficit Capital Accounts. In the event the Company is "liquidated" within the
meaning of Regulations Section 1.704-1(b)(2)(ii)(g), (i) distributions shall be
made pursuant to this Section 6.2 to the Members who have positive Capital
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Accounts in compliance with Section 1.704-1(b)(2)(ii)(B)(2) of the Treasury
Regulations. If any Member has a deficit balance in his Capital Account (after
giving effect to all contributions, distributions and allocations for all Fiscal
Years, including the Fiscal Year during which such liquidation occurs), such
Member shall have no obligation to make any contribution to the capital of the
Company with respect to such deficit, and such deficit shall not be considered a
debt owed to the Company or to any other Person for any purpose whatsoever. In
the discretion of the Liquidator, a pro rata portion of the distributions that
would otherwise be made to the Members pursuant to this Article VI may be:
(i) distributed to a trust established for the benefit of the
Members for the purposes of liquidating Company assets, collecting
amounts owed to the Company, and paying any contingent or unforeseen
liabilities or obligations of the Company and distributed from such
trust to the Members from time to time, in the reasonable discretion of
the Liquidator, in the same proportions as the amount distributed to
such trust by the Company would otherwise have been distributed to the
Members pursuant to Section 6.1; or
(ii) withheld to provide a reasonable reserve for Company
liabilities (contingent or otherwise) and to reflect the unrealized
portion of any installment obligations owed to the Company, provided
that such withheld amounts shall be distributed to the Members as soon
as practicable.
Section 6.3 Deemed Distribution and Recontribution. Notwithstanding any
other provision of this Article VI, in the event the Company is liquidated
within the meaning of Section 1.706-1 (b)(2)(ii)(g) of the Treasury Regulations
but no Dissolution Event has occurred, the Company shall not be liquidated, the
Company's debts and other liabilities shall not be paid or discharged, and the
Company's affairs shall not be wound up. Instead, soley for federal income tax
purposes, the Company shall, to the extent required by applicable Treasury
Regulations, be deemed to have contributed its assets in-kind to a new limited
liability company, which shall be deemed to have taken such assets subject to
all debts of the Company and other liabilities, in exchange for all of the
ownership interests in that new company. Immediately thereafter, the Company
shall, to the extent required by applicable Treasury Regulations, be deemed to
have distributed such interests in-kind to the Members.
Section 6.4 Rights of Members. Except as otherwise provided in this
Agreement, each Member shall look solely to the assets of the Company for the
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return of his Capital Contribution and has no right or power to demand or
receive assets other than cash from the Company. If the assets of the Company
remaining after payment or discharge of the debts or liabilities of the Company
are insufficient to return such Capital Contribution, the Members shall have no
recourse against the Company or any other Member.
Section 6.5 Notice of Dissolution/Termination.
Section 6.5.1 In the event a Dissolution Event occurs, the
Liquidator shall, within thirty (30) days thereafter, provide written notice
thereof to each of the Members and to all other parties with whom the Company
regularly conducts business and shall publish notice thereof in a newspaper of
general circulation in each place in which the Company regularly conducts
business.
Section 6.5.2 Upon completion of the distribution of its
assets as provided in this Article VI, the Company shall be terminated, and the
Liquidator shall cause the filing of the Articles of Dissolution pursuant to
Section 705 of the Act and shall take all such other actions as may be necessary
to terminate the Company.
Section 6.6 Allocations During Period of Liquidation. During the
period commencing on the first day of the Fiscal Year during which a Dissolution
Event occurs and ending on the date on which all of the assets of the Company
have been distributed to the Members pursuant to Section 6.1), the Members shall
continue to share Profits, Losses, gain, loss and other items of Company income,
gain, loss or deduction in the manner provided in Article III.
Section 6.7 Certain Arrangements Relating to Liquidation.
Section 6.7.1 Appointment. At the time that a Dissolution
Event first occurs, IMMUNOMEDICS shall appoint a Person to oversee the
liquidation of the Company.
Section 6.7.2 Fees. The Company is authorized to pay a
reasonable fee to the Liquidator for his services performed pursuant to this
Article VI and to reimburse the Liquidator for his reasonable costs and expenses
incurred in performing those services.
Section 6.8 Form of Liquidating Distributions. For purposes of making
distributions required by Section 6.1, the Liquidator may determine whether to
distribute all or any portion of the Company's assets in-kind or to sell all or
any portion of such assets and distribute the proceeds therefrom.
A-18
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EXHIBIT A
MEMBERSHIP ROSTER
Name of Member Address
IMMUNOMEDICS, INC. 300 American Road
Morris Plains, NJ 07950
DAVID M. GOLDENBERG
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EXHIBIT B
MEMBERS INITIAL CAPITAL CONTRIBUTIONS
Name of Member $ Amount
IMMUNOMEDICS, INC. $18,648,000
DAVID M. GOLDENBERG $ 0
<PAGE>
Contact: Jay Steffenhagen, Beckman Coulter (714) 773-7620
Cynthia Sullivan, Immunomedics (973) 605-8200, ext. 109
BECKMAN COULTER AND IMMUNOMEDICS ANNOUNCE FUNDING
OF THEIR JOINT VENTURE FOR CANCER THERAPEUTICS
FULLERTON, CA, and MORRIS PLAINS, NJ, March 9, 1999 - Beckman Coulter, Inc.
(NYSE:BEC) and Immunomedics, Inc. (NASDAQ:IMMU) announced today that their joint
venture in cancer therapeutics, IBC Pharmaceuticals, LLC, has received start-up
funding from a private investor group. The group received a 7 percent interest
in IBC based on a $35 million valuation.
Operations will begin at Immunomedics facilities in New Jersey and Beckman
Coulter facilities in Marseille France. Immunomedics' Chairman, Dr. David M.
Goldenberg, will also serve as Chairman of IBC, and Dr. Jacques Barbet, one of
the inventors of IBC's technology, will direct the European operations. Other
IBC officers are Michael Brochu, CEO, formerly Vice President of business
development at Coulter Corp., and Richard Williams, CFO, who is Chairman of
Medco Research and a Director of Immunomedics.
IBC was formed in 1998 when Beckman Coulter and a majority owned subsidiary of
Immunomedics each contributed basic patents, with the intention of finding
outside investors to fund further development. At that time their ownership
positions were 47 percent and 53 percent (by a majority-owned subsidiary of
Immunomedics), respectively.
The joint venture will attempt to develop new therapies that selectively
irradiate cancer cells in a two-step process. Treatment would begin with
injection of a bispecific antibody that targets the cancer. These proprietary
antibodies then bind with a radio-labeled carrier that is injected later as a
second step.
Immunomedics, through its subsidiary, has contributed its proprietary humanized
antibody against the cancer marker, carcinoembryonic antigen, which is used in
its CEA-Cide* therapeutic. Beckman Coulter has provided other antibodies and a
license to patents covering its bispecific targeting technology called the
"Affinity Enhancement System" or AES. This method can also be used to
selectively deliver non-isotopic agents.
Beckman Coulter's Chairman, President and CEO, John P. Wareham, commented, "This
venture brings together key technologies and shares development risk with
outside investors. We are pleased to have found a way to further this promising
therapy."
<PAGE>
Dr. Goldenberg stated, "Animal and clinical studies have shown that the IBC
technology can deliver diagnostic and therapeutic isotopes to cancer cells,
especially in patients with small-cell lung or medullary thyroid cancers. We
plan to extend our capabilities to colorectal, breast, non-small cell lung and
prostate cancers. These efforts are being pursued in tandem with Immunomedics
trials of CEA-Cide and LymphoCide* that use directly labeled anticancer
antibodies."
Dr. Barbet added, "To-date, over 300 cancer patients have been studied using the
IBC technology, and we have published animal and clinical studies demonstrating
improved targeting and encouraging therapeutic responses. The clinical studies
have been directed by Professor J.F. Chatal of Nantes, France, who is a
prominent European investigator in nuclear medicine."
Beckman Coulter, Inc., is a leading provider of instrument systems and
complementary products that simplify and automate processes in life science and
clinical laboratories. The company's products are used throughout the world in
all phases of the battle against disease, from pioneering medical research and
drug discovery to diagnostic testing that aids in patient treatment. Annual
sales for the company totaled $1.7 billion in 1998, with about half of this
amount generated outside the United States.
Immunomedics is a biopharmaceutical company focused on the development,
manufacture and commercialization of diagnostic imaging and therapeutic products
for the detection and treatment of cancer and infectious diseases. Integral to
these products are highly specific monoclonal antibodies and antibody fragments
designed to deliver radioisotopes and chemotherapeutic agents to tumors and
sites of infection. The Company's first product, CEA-Scan* for the detection of
colorectal cancer, is being marketed in the United States and Europe (approved
in Canada). The Company's second diagnostic imaging product, LeukoScan*, is
being marketed in Europe for the diagnosis of osteomyelitis (bone infection).
This product is presently under regulatory review by the U.S. Food and Drug
Administration. Immunomedics also has several other diagnostic imaging products
and two therapeutic products in clinical trials.
This release contains certain forward-looking statements regarding the
development and therapeutic value of the IBC technology. While Beckman Coulter
and Immunomedics believe that this is a promising area for research, this
product is in the early phases of development, and they cannot offer any
assurances that marketable products will be developed or, if they are developed,
that necessary government approvals can be obtained. The FDA has not approved
this technology for therapeutic use. Only limited clinical studies have been
performed and additional studies may show that the technology has limited
clinical utility, is not sufficiently effective, or has side effects that render
it unacceptable for therapeutic use.
*CEA-Cide, LymphoCide, CEA-Scan and LeukoScan are trademarks of Immunomedics,
Inc.
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