ImmuCell Corporation
Exhibit Index
Exhibit No. Page
10.1 1995 Stock Option Plan for Outside Directors.
10.2 Form of Stock Option Agreement.
10.3 Research Agreement dated April 19, 1995 between the
Registrant and Membrex, Inc. of Fairfield, New Jersey.
10.4 Term Letter dated April 19, 1995 between the Registrant and
Membrex, Inc. of Fairfield, New Jersey.
10.5 Amendment No.3 to Agreement of Exclusivity between Advanced
Separation Technologies, Inc. and the Registrant dated
May 3, 1995.
27.1 Financial Data Schedule.
ImmuCell Corporation
Exhibit 10.1
1995 Stock Option Plan For Outside Directors
IMMUCELL CORPORATION
1995 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
1. Purpose. The purpose of this 1995 Stock Option Plan for Outside Directors
(the "Plan") is to attract and retain the continued services of non-employee
directors of ImmuCell Corporation (the "Company") with the requisite
qualifications and to encourage such directors to secure or increase on
reasonable terms their stock ownership in the Company. The Board of Directors
of the Company (the "Board") believes that the granting of options (the
"Options") under the plan will promote continuity of management and increased
personal interest in the welfare of the Company by those who are responsible for
shaping and carrying out the long- range plans of the Company and securing its
continued growth and financial success.
2. Effective Date of the Plan. The plan shall become effective on February 24,
1995 (the "Effective Date"), provided, however, that if the Plan is not approved
by the Stockholders of the Company prior to October 1, 1995 this plan and all
Options granted hereunder shall be null and void and shall be of no effect.
3. Stock Subject to Plan. 64,000 of the authorized but unissued shares of the
Company's common stock, par value $.10 per share, (the "Shares") have been
reserved for issuance upon the exercise of Options; provided, however, that the
number of Shares so reserved may from time to time be reduced to the extent that
a corresponding number of treasury shares are set aside for issuance upon the
exercise of Options. If any Options expire or terminate for any reason without
having been exercised in full, the unpurchased Shares subject thereto shall
again be available for the grant of Options.
4. Administration. The Plan shall be administered by the Compensation and Stock
Option Committee (the "Committee") appointed by the Board referred to in Section
5 hereof. Subject to the provisions of the Plan, the Committee shall have
complete authority in its discretion to interpret the Plan, to prescribe, amend
and rescind rules and regulations relating to it, to prescribe the form of
agreement evidencing Options granted under this Plan and to make all other
determinations necessary or advisable for the administration of the Plan;
provided, however, that the Committee shall have no discretion to determine the
non-employee directors who will receive Options, the number of Shares subject to
Options, the terms upon which, the times at which or the periods within which
Shares may be acquired or the Options may be acquired and exercised.
5. Committee. The Committee shall consist of at least three members of the
Board of Directors (the "Board"), or such lesser number as may be permitted
under Rule 16b-3 under the Securities Exchange Act of 1934, as such rule may
hereafter be amended ("Rule 16b-3"), each of whom shall be a "disinterested
person" as defined in Rule 16b-3. Each member of the Committee shall also be a
person who is not an employee of the Company or any subsidiary of the Company.
The Board, at its pleasure, may remove members from or add members to the
Committee. A majority of Committee members shall constitute a quorum of members
and the actions of the majority shall be final and binding on the whole
Committee. Any decision or determination of the Committee reduced to writing
and signed by all of the members of the Committee shall be fully effective as
if it had been made at a meeting duly called and held.
6. Eligibility. An Option may be granted only to members of the Board who are
not otherwise employees of the Company or any of its parents or subsidiaries on
the date of grant and have not been employees of the Company or any of its
subsidiaries at any time since the beginning of the preceding fiscal year (the
"Participants").
7. Grant of Options and Option Price. Each individual who is a Participant on
the Effective Date shall automatically be granted on the Effective Date an
Option to purchase 8,000 Shares.
Directors who are newly elected to the Board subsequent to the Effective Date
shall receive an automatic grant of an Option to purchase 8,000 Shares on the
date when such director is first elected to the Board by the Stockholders of the
Company, provided, however, that such automatic grant shall only be made if the
new director is a Participant on the date of his election by the Stockholders,
and the number of Shares subject to future grant under the Plan is sufficient to
make the automatic grant required to be made pursuant to the Plan
on such date.
In the event a new non-employee director is appointed by the Board to fill a
vacant directorship position, the new director will not be eligible for an
automatic grant of Options until he or she has been elected to that position at
the Annual Meeting of the Stockholders of the Company.
The initial per Share price to be paid by a Participant upon the exercise of
an Option shall be equal to the fair market value of a Share on the date of
grant. For the purposes hereof, the fair market value of a Share on any date
shall be equal to the last sales price on such date (or if no such sale occurred
on that date, on the next preceding date on which there was such a sale), as
reported by The Nasdaq SmallCap Market or if no such prices are available, the
fair market value as determined by rules to be adopted by the Committee.
8. Option Period. The period within which each Option may be exercised shall
expire, in all cases, five (5) years from the date the Option is granted, unless
terminated sooner pursuant to Section 12 or fully exercised prior to the end of
such period.
9. Exercise and Payment. An Option may be exercised at any time and from time
to time, subject to the limitations set forth in Section 10, by the delivery to
the Company of a written notice of intent to exercise the Option with respect to
a specificied number of Shares and payment to the Company of the exercise price
for the number of Shares with respect to which the Option is then exercised.
All or any portion of such payment may be made in kind by the delivery of Shares
having a fair market value (as determined in the manner set forth in Section 7
hereof), on the date of delivery, equal to the portion of the Option exercised
price so paid; provided, however, that no such payment may be made by the
delivery of Shares unless the holder has held such Shares for more than six
months.
10.Vesting; Service Required for Exercise. For those directors who are
Participants on the Effective Date, each Option shall become exercisable as to
one-half (1/2) of the Shares subject to the Option on the first business day
after the 1996 Annual Meeting of Stockholders and thereafter as to the remaining
one-half (1/2) of the Shares after the first business day after the 1997 Annual
Meeting of Stockholders providing service by the holder thereof, as a director
of the Company, since the date of the grant of the Option has been continuous.
For those directors who become Participants subsequent to the Effective Date,
each Option shall become exercisable as to one-half (1/2) of the Shares subject
to the Option on the first business day after the first Annual Meeting of
Stockholders subsequent to the Annual Meeting at which the Participant is first
elected to the Board of Directors by the Stockholders and thereafter as to the
remaining one-half (1/2) of the Shares on the first business day after the next
Annual Meeting of Stockholders providing service by the holder thereof, as a
director of the Company, since the date of the grant of the Option has been
continuous. The Option shall not be exercisable as to any Shares as to which
the continuous service requirement shall not be satisfied, regardless of the
circumstances under which the holder's service to the Company shall be
terminated. The number of Shares as to which the Option may be exercised shall
be cumulative, so that once the Option shall become exercisable as to any Shares
it shall continue to be exercisable as to such Shares, until the expiration
or termination of the Option as provided in the Plan.
Notwithstanding anything to the contrary set forth in the foregoing, no
Option granted hereunder shall become exercisable unless the Plan shall have
been approved by the stockholders of the Company.
11.Transferability. No Option shall be assignable or transferable except by
will and/or by the laws of descent and distribution and, during the life of any
Participant, each Option granted to the Participant may be exercised only by the
Participant.
12.Ceasing to be a Director. (a) Termination. If a Participant terminates
service as a director for any reason other than disability, death or retirement,
any outstanding Option held by the Participant shall terminate on the earlier of
the date on which such Option would otherwise expire or three (3) months after
such termination; provided, however, that if such termination is for cause,
such option shall expire on the date of termination.
(b) Disability. If a Participant's service as a director is terminated by
disability, the terms of any then outstanding Option held by the Participant
shall terminate on the later of the date on which such Option would otherwise
expire or one (1) year after such termination.
(c) Death. If a Participant's service as a director is terminated by death,
the representative of the Participant's estate or beneficiaries thereof to whom
the Option has been transferred shall have the right during the period
commencing on the date of the Participant's death and ending on the later of the
date on which such Option would otherwise expire or one (1) year after such
termination to exercise any then outstanding Options in whole or in part.
(d) Retirement. If a Participant's service as a director is terminated by
retirement in accordance with the age limits then in effect for members of the
Board, any then outstanding Option held by the Participant shall remain
outstanding and terminate in accordance with its terms.
13.Duration of Plan. Unless sooner terminated, the Plan shall remain in effect
for a period of five (5) years after the Effective Date and shall thereafter
terminate. No Options may be granted after the termination of this Plan;
provided, however, that except as otherwise provided in Section 2, termination
of the Plan shall not affect any Options previously granted, or the vesting of
such Options, which Options shall remain in effect until exercised, surrendered
or cancelled, or until they have expired, all in accordance with their terms.
14.Changes in Capital Structure, etc. In the event of changes in the
outstanding common stock of the Company by reasons of stock dividends, stock
splits, recapitalizations, mergers, consolidations, combinations or exchange of
shares, separations, reorganizations, or liquidations, the number of Shares
available under the Plan in the aggregate and the number of Shares as to which
Options may be granted to any Participant shall be correspondingly adjusted by
the Committee. In addition, the Committee shall make appropriate adjustments in
the number of Shares as to which outstanding Options, or portions thereof then
unexercised, shall relate, to the end that the Participant's proportionate
interest shall be maintained as before the occurrence of such events; such
adjustments shall be made without change in the total price applicable to the
unexercised portion of Options and with a corresponding adjustment in the Option
price per Share.
In addition, if the Company is to be consolidated with or acquired by another
entity in a merger, sale of all or substantially all of the Company's assets or
otherwise, the Committee or the Board of Directors of any entity assuming the
obligations of the Company hereunder, shall, as to vested Options, either (i)
provide that such Options shall be assumed, or equivalent options shall be
substituted, by the acquiring or successor corporation (or an affiliate
thereof), or (ii) upon written notice to the optionees, provide that all Options
must be exercised, to the extent then exercisable, within a specified number of
days of the date of such notice, at the end of which period of the Options shall
terminate.
15.Rights as Shareholder. A Participant entitled to Shares as a result of the
exercise of an Option shall not be deemed for any purpose to be, or have rights
as, a Stockholder of the Company by virtue of such exercise, except to the
extent a Stock Certificate is issued therefor and then only from the date such
certificate is issued. No adjustments shall be made for dividends or
distributions or other rights for which the record date is prior to the date
such Stock Certificate is issued.
16.Expenses. The expenses of this Plan shall be paid by the Company.
17.Compliance with Applicable Law. Notwithstanding anything herein to the
contrary, the Company shall not be obligated to cause to be issued or delivered
any certificates evidencing Shares to be delivered pursuant to the exercise of
an Option, unless and until the Company is advised by its counsel that the
issuance and delivery of such certificates is in compliance with all applicable
laws and regulations of governmental authority. The Company shall in no event
be obligated to register any securities pursuant to the Securities Act of 1933
(as now in effect or as hereafter amended) or to take any other action in order
to cause the issuance and delivery of such certificates to comply with any such
law or regulation. The committee may require, as a condition of the issuance
and delivery of such certificates and in order to ensure compliance with such
laws and regulations, that the Participant make such covenants, agreements and
representations as the Committee, in its sole discretion, deems necessary or
desirable.
18.Application of Funds. Any cash proceeds received by the Company from the
sale of Shares pursuant to Options will be used for general corporate purposes.
19.Amendment of the Plan. The Board may from time to time suspend or
discontinue this Plan or revise or amend it in any respect whatsoever; except
that any amendment requiring Stockholder approval under Rule 16b-3, as such Rule
is in effect on the Effective Date and as it may be subsequently amended, shall
not be made without approval of the stockholders of the Company; and provided
that the provisions of Sections 6 through 10 of the Plan may not be amended more
than once every six (6) months, except as otherwise provided in or permitted by
Rule 16b-3. No such suspension, discontinuance, revision or amendment shall in
any manner affect any grant theretofore made without the consent of the
Participant or the transferee of the Participant, unless necessary to comply
with applicable law.
ImmuCell Corporation
Exhibit 10.2
Form of Stock Option Agreement
IMMUCELL CORPORATION
1995 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
STOCK OPTION AGREEMENT
Subject to the terms of the 1995 Stock Option Plan for Outside
Directors (the"Plan") of ImmuCell Corporation (the "Company"), a true copy of
which is attached hereto as Exhibit A, (the
"Optionee") is hereby granted an Option (as defined in the Plan) to purchase
8,000 shares of the Common Stock of the Company at a price of $ per
share, such price per share being equal to 100% of the fair market value of
the stock at the time this Option is granted (the "Option Price") as
determined by the last sales price on the date of grant. This Option expires
five (5) years from the date hereof and is subject to any earlier termination
as provided in the Plan.
Subject to the foregoing, this Option shall be exercisable by the Optionee as
follows:
The Option is not transferable by the Optionee otherwise than by will
and by the laws of descent and distribution and is exercisable during the
Optionee's lifetime only by such Optionee.
The Optionee hereby accepts the Option specified above, subject to all
of the terms and provisions set forth above and in the Plan.
IMMUCELL CORPORATION Accepted:
By: ________________________ By: ________________________
Its: Chief Financial Officer
Dated: As of_______________________________
ImmuCell Corporation
Exhibit 10.3
Research Agreement dated April 19, 1995 between the Registrant
and Membrex, Inc. of Fairfield, New Jersey
April 19th, 1995
Mr. Thomas Hatch, President
IMMUCELL CORPORATION
56 Evergreen Drive
Portland, ME 04103
Dear Tom:
We understand that ImmuCell Corporation ("ImmuCell") has expended
considerable time and energy relating to the technical and economic
feasibility of a product (the "Product"), incorporating both (i) proprietary
technology and/or hardware provided by Membrex, Inc. ("Membrex") and (ii)
monoclonal or polyclonal antibodies that bind to cryptosporidium antigens or
antigens of other waterborne infectious disease organisms (hereafter being
included in the term "cryptosporidium") provided by ImmuCell, designed for an
assay for cryptosporidium. ImmuCell also recognizes the significant
investment which Membrex has made in the development of its patented Vortex
Flow Filtration (VFF) technology and systems. As an inducement to ImmuCell
to continue its research and investigation relating to such technical and
economic feasibility, Membrex agrees with ImmuCell that Membrex will not
license, grant an interest in or otherwise transfer any of its proprietary
technology to, or enter into a joint venture arrangement with, any other
person or entity for the purpose of manufacturing or selling Products
designed explicitly for an assay for cryptosporidium, from the date hereof
until the earlier of (a) a period of one year from the date hereof and (b)
receipt of notice from ImmuCell that it is no longer interested in pursuing
an arrangement with Membrex relating to the development, manufacture or sale
of a Product (the "Effective Term"); provided, however, the foregoing shall
not prohibit or otherwise restrict Membrex's right to (i) sell all or
substantially all of its assets or merge with or into any other person or
entity or (ii) sell any products or hardware of Membrex directly to an
end-user of such product or hardware. ImmuCell agrees that during the
Effective Term of this agreement, ImmuCell will diligently continue its
research and investigation into the technical and economic feasibility of the
Product, keep Membrex informed on a current basis regarding ImmuCell's
research and investigation (which information shall be considered
confidential and subject to the terms of the confidentiality agreement in
effect between ImmuCell and Membrex), cooperate with Membrex in modifying
hardware and disposables (if necessary) to meet the market's requirement's
for cryptosporidium testing, cooperate with Membrex in having the Products
evaluated in the field by outside investigators including working with
Membrex toward EPA approval, and will notify Membrex promptly after a
determination by ImmuCell that it is no longer interested in pursuing an
arrangement with Membrex relating to the development, manufacture or sale of
a Product.
It is the intention of ImmuCell and Membrex that in the event the Parties
mutually agree as to the technical and economic feasibility of a product,
ImmuCell and Membrex shall use their good faith efforts to reach an agreement
regarding the marketing of the Product. The attached Tenn Sheet will serve
as the basis for a definitive agreement.
In the event that only one of the Parties is interested in pursuing the
marketing of the Product, the non-interested Party agrees to negotiate in
good faith with the interested party for the supply and/or license of the
relevant technology.
IN WITNESS HEREOF: ACCEPTED and AGREED:
MEMBREX, INC. IMMUCELL CORPORATION
/s/ Malcolm R. Kahn 4/19/95 /s/ Thomas C. Hatch 4/21/95
Malcolm R. Kahn, President Date Thomas Hatch, President Date
ImmuCell Corporation
Exhibit 10.4
Term Letter dated April 19, 1995 between the Registrant and
Membrex, Inc. of Fairfield, New Jersey
April 19th, 1995
Mr. Thomas Hatch, President
IMMUCELL CORPORATION
56 Evergreen Drive
Portland, ME 04103
Dear Tom:
As promised, I have reviewed our relationship and would like to suggest the
following strategy to give ImmuCell comfort that Membrex has honorable
intentions about following through with a cooperative relationship to market
test kits and systems for Cryptosporidium testing. Accordingly, I have had
my lawyer draw up a Right of First Refusal Agreement which is a simple and
fast way of moving the project along. In this letter, I will also outline
several alternatives to our longer term relationship which Membrex would find
agreeable and suggest, what we believe, is a logical strategy for moving
forward.
1. ImmuCell and Membrex assign one employee each to help explore the market
opportunities for Cryptosporidium testing.
1.1 That each company adsorb its own expenses during this
investigation.
1.2 That both companies share out of pocket expenses for field
evaluations: ImmuCell supplying reagent test kits and Membrex
supplying Benchmarks and membrane filters.
1.3 That ImmuCell and Membrex meet by mid-May to review the final test
results and develop a detailed plan for field evaluations, EPA and/or
FDA contact and required approvals, and a marketing research program.
2. That the two Companies agree to either market the products through a
Joint Venture Partnership or through one of the existing organizations
(we believe that Membrex, with its existing field sales and service
organization is best equipped to undertake this project) based on the
successful initial marketing studies.
2.1 That, in the case of joint venture arrangement, the JV Company be
responsible for the marketing, sales and after sales service of the
joint technology under exclusive license.
2.2 That, in the event that either of our companies becomes the designated
marketing organization, that company be responsible for the marketing,
sales and after sales service under exclusive license.
2.3 That the companies share in the profits by either splitting the JV
profits as outlined in point 3 below or, in the event that one company
is responsible for marketing through its existing organization, by
having the non-marketing company share in the profits distributed as
an expense item from the marketing company (on the same basis outlined
in point 3 below).
2.4 That ImmuCell and Membrex manufacture the components for this joint
marketing agreement (ImmuCell manufacturing the reagent kits and
Membrex manufacturing the systems and membrane disposables) and sell
them to either the JV at cost or to the designated marketing company
at a rate that would compensate the non-designated marketing company
for its share of the profits to be distributed as outlined in point 3
below. (This is an alternative way for both companies to get sales
revenues which seem important to both organizations.)
2.4.1 That the JV be considered as a manufacturer at some future
time if, based on volumes, there is financial justification.
3. That the JV ownership and/or split of the profits from the sale of
disposable kits recognize the enabling Membrex technology and patent
rights.
3.1 That based on this enabling technology position, profits be divided
51% to Membrex and 49% to ImmuCell.
4. In the event that either of our companies serves as the marketing
company, it will have the right to earn a profit for its extra
efforts, such profit to be mutually agreed by the Parties.
Tom, I hope that the enclosed Right Of First Refusal and the proposals
outlined above address your concerns.
Sincerely yours,
/s/ Malcolm Kahn
Malcolm Kahn
ImmuCell Corporation
Exhibit 10.5
Amendment No. 3 to Agreement of Exclusitity between
Advance Separation Technologies, Inc. and the Registrant dated May 3, 1995
AMENDMENT TO
AGREEMENT FOR EXCLUSIVITY
MAY 3, 1995
THIS AMENDMENT ("The Amendment") to AGREEMENT FOR EXCLUSIVITY IN PROTEIN
SEPARATION OF MILK OR WHEY PROTEINS (the "Agreement" dated August 30, 1993)
is made this 4th day of May, 1995, by and between ImmuCell Corporation, a
Delaware Corporation with its principal place of business at 56 Evergreen
Drive, Portland, Maine 04103 ("ImmuCell") and Advanced Separation
Technologies, Inc., a Florida corporation with its principal place of
business at 5315 Grant Oak Drive, Lakeland, Florida 33801 ("AST").
RECITALS
A.) ImmuCell and AST have entered into an Agreement for Exclusivity, dated
August 30, 1993 (Agreement), pursuant to which AST granted ImmuCell
certain rights in return for meeting certain purchase requirements.
B.) ImmuCell and AST have amended the Agreement on November 5, 1993,
January 14, 1994, and December 16, 1994.
C.) ImmuCell and AST desire to amend the Agreement again.
NOW THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto agree as follows:
1.) Article II, Section 2.4 on page four of the Agreement is deleted in
its entirety and replaced with the following:
2.4 Commercial ISEP(tm)-ImmuCell will place order for a commercial
ISEP(tm) System as defined in Proposal No. 24-95289B and C. Rev.
1 within twenty-four months of receipt of the ISEP(tm) defined in
Proposal No. 42-95289-A and purchased by ImmuCell under P.O.
#A0463 on September 28, 1993. ImmuCell will pay AST One Thousand
Dollars ($1,000) per month for each month the order is delayed
past the twelth month from receipt of the ISEP defined in
Proposal No. 42-952889-A.
2.) Article 1, Section 1.10 on page three of the Agreement is deleted in
its entirety and replaced with the following:
1.10 FIELD OF USE. "Field of Use" shall consist of the separation of
the following milk or whey proteins, alone or in combination:
Beta lactoglobulin, Alpha lactalbumin, Immunoglobulins, Bovine
Serum Albumin, Proteose-Peptone Fraction, Lipoproteins,
Lactoferrin, Growth factors, Phosphoproteins, Glycoproteins,
Enzymes, Caseins and Casein peptides.
3.) All other provision of the Agreement remain unchanged and in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this amendment as of the
day and year first above written.
IMMUCELL CORPORATION ADVANCED SEPARATION TECHNOLOGIES, INC.
By: /s/ Frank E. Ruch, Jr. By: /s/ D.E. Brynt
Frank E. Ruch, Jr. D.E. Bryant
Vice President R&D President and CEO
ImmuCell Corporation
Exhibit 27.1
Financial Data Schedule