IMMUCELL CORPORATION
Exhibit 10.2
Limited Liability Company Agreetment of Clearwater Diagnostics Company, LLC
dated as of September 17, 1996 between the Registrant and Membrex, Inc., of
Fairfield, NJ .
LIMITED LIABILITY COMPANY AGREEMENT
OF
CLEARWATER DIAGNOSTICS COMPANY, LLC
Dated as of September 17, 1996
LIMITED LIABILITY COMPANY AGREEMENT OF
CLEARWATER DIAGNOSTICS COMPANY, LLC
TABLE OF CONTENTS
Page
ARTICLE I Definitions . . . . . . . . . . . . . . . . . . . . . . . . ..1
ARTICLE II Formation of the Company. . . . . . . . . . . . . . . . . . ..4
2.1. Formation and Name of Company . . . . . . . . . . . ..4
2.2. Purpose . . . . . . . . . . . . . . . . . . . . . . ..5
2.3. Registered Office; Registered Agent . . . . . . . . ..5
2.4. Principal Place of Business . . . . . . . . . . . . ..5
ARTICLE III Rights and Obligations of Members; Voting Rights. . ..5
3.1. Members . . . . . . . . . . . . . . . . . . . . . . ..5
3.2. Voting Rights . . . . . . . . . . . . . . . . . . . ..5
3.3. Liability of Members. . . . . . . . . . . . . . . . ..5
ARTICLE IV Management. . . . . . . . . . . . . . . . . . . . . . . . . ..6
4.1. Management Generally. . . . . . . . . . . . . . . . ..6
4.2. Authority of Manager. . . . . . . . . . . . . . . . ..6
4.3. Limitations on Authority. . . . . . . . . . . . . . ..6
4.4. Activities of Manager . . . . . . . . . . . . . . . ..7
4.5. Exculpation . . . . . . . . . . . . . . . . . . . . ..8
4.6. Indemnification . . . . . . . . . . . . . . . . . . ..8
4.7. Payment of Costs and Expenses . . . . . . . . . . . ..8
4.8. Resolution of Deadlocks . . . . . . . . . . . . . . ..8
ARTICLE V Capital Contributions and Capital Accounts. . . . . . . . . ..9
5.1. Capital Contributions . . . . . . . . . . . . . . . ..9
5.2. Capital Accounts. . . . . . . . . . . . . . . . . . ..9
5.3. Determination of Certain Matters. . . . . . . . . . ..9
ARTICLE VI Allocations . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1. General Allocations . . . . . . . . . . . . . . . . ..9
6.2. Special Allocations . . . . . . . . . . . . . . . . .10
6.3. Allocations for Tax Purposes. . . . . . . . . . . . .11
6.4. Allocation of Expenses Between Products . . . . . . .11
ARTICLE VII Distributions and Withdrawals . . . . . . . . . . . . . . . .12
7.1. Distributions . . . . . . . . . . . . . . . . . . . .12
7.2. Withdrawals . . . . . . . . . . . . . . . . . . . . .12
7.3. Conditions. . . . . . . . . . . . . . . . . . . . . .12
7.4. Source of Distributions . . . . . . . . . . . . . . .13
7.5. Tax Withholding . . . . . . . . . . . . . . . . . . .13
ARTICLE VIII Transfers of Members' Interests . . . . . . . . . . . . . . .13
8.1. Transfer of Interest. . . . . . . . . . . . . . . . .13
8.2. Conditions of Transfer. . . . . . . . . . . . . . . .13
8.3. Admission of New Members. . . . . . . . . . . . . . .13
8.4. Involuntary Assignment by a Member. . . . . . . . . .14
8.5. Withdrawal of Members . . . . . . . . . . . . . . . .14
ARTICLE IX Dissolution . . . . . . . . . . . . . . . . . . . . .15
9.1. Dissolution . . . . . . . . . . . . . . . . . . . . .15
9.2. Winding Up and Liquidation. . . . . . . . . . . . . .15
9.3. Liabilities . . . . . . . . . . . . . . . . . . . . .15
9.4. Settling of Accounts. . . . . . . . . . . . . . . . .16
9.5. Distribution of Proceeds. . . . . . . . . . . . . . .16
9.6. Filing. . . . . . . . . . . . . . . . . . . . . . . .16
9.7. Event . . . . . . . . . . . . . . . . . . . . . . . .16
ARTICLE X Tax Returns; Reports to Members . . . . . . . . . . .16
10.1. Filing of Tax Returns . . . . . . . . . . . . . . . .16
10.2. Tax Matters Member. . . . . . . . . . . . . . . . . .17
10.3. Reports to Members. . . . . . . . . . . . . . . . . . . . . .17
10.4. Records to be Kept. . . . . . . . . . . . . . . . . . . . . .17
10.5. Inspection of Company Records . . . . . . . . . . . . . . . .18
ARTICLE XI Additional Agreements of the Members. . . . . . . . . . . . .18
11.1. License by Membrex. . . . . . . . . . . . . . . . . . . . . .18
11.2. License by ImmuCell . . . . . . . . . . . . . . . . .18
11.3. Sale of Components. . . . . . . . . . . . . . . . . .19
11.4. Design of New VFF Device. . . . . . . . . . . . . . .19
ARTICLE XII Dispute Resolution. . . . . . . . . . . . . . . . . . . . . .19
ARTICLE XIII Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . .20
13.1. Representations and Warranties of the Members . . . . . . . .20
13.2. Successors and Assigns. . . . . . . . . . . . . . . . . . . .20
13.3. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . .20
13.4. Choice of Law . . . . . . . . . . . . . . . . . . . . . . . .20
13.5. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . .21
13.6. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . .21
13.7. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . .21
13.8. Severability. . . . . . . . . . . . . . . . . . . . . . . . .21
13.9. Seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
13.10. Gender and Number . . . . . . . . . . . . . . . . . . . . . .21
13.11. Force Majeure . . . . . . . . . . . . . . . . . . . .21
13.12. Confidentiality . . . . . . . . . . . . . . . . . . .21
13.13. Prior Agreement . . . . . . . . . . . . . . . . . . .22
Exhibit I Certificate of Formation
Schedule A Names, Addresses, Capital Contributions and
Percentage Interests of Members
LIMITED LIABILITY COMPANY AGREEMENT
OF
CLEARWATER DIAGNOSTICS COMPANY, L.L.C.
Dated as of September 17, 1996
LIMITED LIABILITY COMPANY AGREEMENT made and entered into as of the
17th day of September, 1996, by and between IMMUCELL CORPORATION, a Delaware
corporation ("ImmuCell"), and MEMBREX, INC., a Delaware corporation
("Membrex"). ImmuCell and Membrex are hereinafter referred to collectively as
the "Members."
R E C I T A L S
WHEREAS, the parties hereto wish to form a limited liability company, to
be called Clearwater Diagnostics Company, L.L.C. (the "Company"), under and
pursuant to the Delaware Limited Liability Company Act codified at Del. Code
tit. 6, Sub. Sec. 18-101 et seq. (the "Act"), for the purpose of engaging in
such business activities authorized under the Act and as provided in this
Agreement;
WHEREAS, the parties hereto agree that their respective rights, powers,
duties and obligations as Members, and the management, operations and
activities of the Company, shall be governed by this Agreement;
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions contained herein, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
For purposes of this Agreement, unless the context otherwise requires:
"Act" means the Delaware Limited Liability Company Act, codified at Del.
Code tit. 6, Sub. Sec. 18-101 et seq., as amended from time to time.
"Adjusted Capital Account" means, with respect to any Member, the balance
in such Member's Capital Account as of the end of the relevant Fiscal Year,
after giving effect to the following adjustments:
(i) Credit to such Capital Account any amounts which such Member is
obligated to restore or is deemed to be obligated to restore pursuant to the
penultimate sentences of Regulations Sub. Sec. 1.704-2(g)(1) and 1.704-2(i)(5);
and
(ii) Debit to such Capital Account the items described in Regulations
Sub. Sec. 1.704- 1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account is intended to comply with
the provisions of Regulations Sub. Sec. 1.704-1(b)(2)(ii)(d) and shall be
interpreted consistently therewith.
"Agreement" means this Limited Liability Company Agreement, as amended,
modified or supplemented from time to time.
"Capital Account" means the Capital Account maintained for each Member
pursuant to Section 5.2.
"Capital Contribution(s)" means the aggregate of all contributions made by
a Member to the Company pursuant to Section 5.1 hereof.
"Certificate of Formation" means the Certificate of Formation of the
Company, as filed with the Secretary of the State, as amended from time to
time.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Company" means Clearwater Diagnostics Company, LLC, created by the
Certificate of Formation and this Agreement pursuant to the Act.
"Company Minimum Gain" has the meaning set forth in Regulation Sub. Sec.
1.704-2(d), but substituting the term "Company" for the term "partnership" as
the context requires.
"Company Products" means Food and Beverage Products and Water Products.
"Fiscal Year" means the calendar year.
"Food and Beverage Products" means products for use in the sample
preparation and detection of infectious disease agents in food and beverage
industrial manufacturing and processing segments.
"Gross Income" means all items of income and gain that are included in the
definition of Income or Loss.
"ImmuCell Components" means the immuno-magnetic separation reagents owned
by or licensed to ImmuCell that bind to Cryptosporidium antigens or antigens of
other waterborne infectious disease organisms.
"ImmuCell License Agreement" has the meaning set forth in Section 11.2.
"Income and Loss(es)" means taxable income or loss plus income exempt from
federal income tax as determined in accordance with the accounting methods
followed by the Company for federal income tax purposes, adjusted to reflect
book-tax disparities as required by Regulation Sub. Sec.
1.704-1(b)(2)(iv)(g).
"Interest" means the entire ownership interest of a Member in the Company
at any particular time, including, without limitation, the right of such Member
to participate in the Company's Income and Losses, distributions and any and
all benefits to which a Member may be entitled as provided in this Agreement
and the Act, together with the obligations of such Member to comply with all
the terms and provisions of this Agreement.
"Licensed ImmuCell Patent Application" has the same meaning as "Licensed
Technology" as defined in Section 1.1 (i) and (ii) of the ImmuCell License
Agreement with the Company.
"Licensed ImmuCell Reagents" has the same meaning as "Product" as defined
in Section 1.3 of the ImmuCell License Agreement with the Company.
"Licensed Membrex Technology" has the same meaning as "Licensed
Technology" in Section 1.1 of the Membrex License Agreements with the Company.
"Managers" means, initially, Thomas C. Hatch and Malcolm R. Kahn, and any
Person who becomes a substitute or replacement Manager as permitted by this
Agreement, in each such Person's capacity as a Manager of the Company.
"Marketing Partner" has the meaning set forth in Section 2.2.
"Member(s)" means each Person named as a Member in this Agreement and any
Person who becomes an additional, substitute or replacement Member as permitted
by this Agreement, in each such Person's capacity as a Member of the Company.
"Membrex Components" means the rotating filter and membranes manufactured
by Membrex for use with the Licensed Technology, as set forth in the Membrex
License Agreements.
"Membrex License Agreements" has the meaning set forth in Section 11.1.
"Membrex Membranes" means membrane filters used in the Licensed Technology
as set forth in the Membrex License Agreements.
"Nonrecourse Deductions" has the meaning set forth in Regulation Sub. Sec.
1.704-2(b)(1).
"Percentage Interest" means, with respect to each Member, such Member's
Percentage Interest in the Company as set forth on Schedule A attached hereto
and made a part hereof.
"Person" means any partnership, joint venture, association, corporation,
limited liability company, trust or other entity and, where the context so
requires, a natural person.
"Regulations" means the regulations (including any proposed or temporary
regulations) issued under the Code by the Department of the Treasury, as they
may be amended from time to time, or any applicable successor regulations.
Reference herein to any particular section of the Regulations shall be deemed
to refer to the corresponding provision of any applicable successor
regulations.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Tax Matters Member" has the meaning set forth in Section 10.2.
"Water Products" means products for use in the sample preparation and
detection of infectious disease agents in water sources, including ground
water, surface water, drinking water, bottled water, sanitary waste water,
cooling towers, and water and waste water in non-food and non-beverage
industrial manufacturing and processing segments. Water Products shall
specifically exclude food and beverage applications, including the testing of
any components thereof in food and beverage manufacturing plants or the testing
of fluids used in the manufacture or processing of such products.
ARTICLE II
Formation of the Company
2.1. Formation and Name of Company. The undersigned parties do
hereby agree to form and do ratify the formation of a limited liability company
under the name "Clearwater Diagnostics Company, L.L.C." pursuant to the Act.
Prior to or upon the execution of this Agreement, the Members have caused or
shall cause to be filed with the Secretary of State the Certificate of
Formation substantially in the form annexed hereto as Exhibit I. Either
Manager shall execute and file or record with the proper offices any other
certificates or instruments required by the Act or by any fictitious name act
or similar statute in effect from time to time.
2.2. Purpose. The purpose of the Company is (i) to manufacture,
market and sell Company Products directly or through a third party marketing
partner (the "Marketing Partner"), and to engage in all activities and
transactions as the Managers may jointly deem necessary or advisable or
incidental in connection therewith, and (ii) to engage in such other business
activities as may be authorized under the Act and as may be approved from time
to time by all of the Members.
2.3. Registered Office; Registered Agent. The registered office in
the State of Delaware shall be Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801. The name and address of the registered agent of
the Company for service of process on the Company in the State of Delaware
shall be The Corporation Trust Company.
2.4. Principal Place of Business. The principal place of business
of the Company is 56 Evergreen Drive, Portland, Maine 04103, or such other
place as from time to time may be designated by the Managers.
ARTICLE III
Rights and Obligations of Members; Voting Rights
3.1. Members. Each Member who is a party to this Agreement and
each Person who may hereafter be admitted as a Member of the Company shall be a
Member of the Company until each ceases to be a Member in accordance with the
Act or this Agreement.
3.2. Voting Rights. Except as may otherwise be provided in the Act
or this Agreement, the affirmative vote, approval or consent of all of the
Members shall be required to decide any matter connected with the business or
affairs of the Company not otherwise within the decision-making authority of
the Managers.
3.3. Liability of Members. No Member, in its capacity as a Member,
shall have any liability to restore any negative balance in its Capital Account
or to contribute to, or in respect of, the liabilities or the obligations of
the Company, or to restore any amounts distributed from the Company, except as
may be required under the Act or other applicable law. In no event shall any
Member, in its capacity as a Member, be personally liable for any liabilities
or obligations of the Company.
ARTICLE IV
Management
4.1. Management Generally. The management of the Company shall be
vested exclusively in two Managers. Thomas C. Hatch, the current President of
ImmuCell, is hereby appointed and confirmed as one of the Managers of the
Company and Malcolm Kahn, the President of Membrex, is hereby appointed and
confirmed as the other Manager of the Company. In the event that either of
such persons shall hereafter cease to be President of ImmuCell and Membrex
respectively, he shall automatically cease to be a Manager of the Company
effective on the date of his termination as President. In such event, the
successor as President (or other highest ranking officer if a new President is
not immediately appointed) shall automatically become the successor Manager of
the Company, without any further action required by the Members, effective on
the date of his or her appointment as President. Except as otherwise provided
herein, the Members shall have no part in the management of the Company, and
shall have no authority or right to act on behalf of the Company in connection
with any matter.
4.2. Authority of Managers. Except as otherwise provided in this
Agreement, and subject to the provisions of Section 4.3, the Managers, acting
together in unanimity, shall have the power on behalf and in the name of the
Company to carry out any and all of the objects and purposes of the Company set
forth in Section 2.2, and to perform such acts and enter into and perform such
contracts and other undertakings on behalf of the Company that the Managers
may deem necessary, advisable, or incidental thereto. The Managers may not act
other than in unanimity.
4.3. Limitations on Authority. The Managers shall not have the
authority to take any of the following actions without the consent of all of
the Members:
(a) Merger. Merge or consolidate with any other Person.
(b) Transfer Assets. Sell, convey, transfer, mortgage, or
otherwise dispose of or encumber, or agree to sell, convey, transfer, mortgage
or otherwise dispose of or encumber all, or substantially all the assets of the
Company.
(c) Bankruptcy. Make an assignment for the benefit of
creditors, or admit in writing its inability to pay its debts as they mature,
or generally fail to pay its debts as they mature and become due, or petition
or apply for the appointment of a trustee or other custodian, liquidator or
receiver for the Company, or of any substantial part of its assets, or
commence any case or other proceeding relating to the Company under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction now or hereafter
in effect, or take any action in furtherance of any of the foregoing.
(d) Liquidation or Wind-Up. Dissolve, liquidate, terminate
or wind-up the Company except as otherwise provided in this Agreement.
(e) Fiscal Year. Change the Company's fiscal year end from
December 31.
(f) Capital Expenditures. Make any capital expenditure in
excess of $500.00.
(g) Tax Status. Change the tax status of the Company under
the Code.
(h) Members. Admit new Members or permit the withdrawal of
Members.
(i) Business. Engage in any business activity not specified
in Section 2.2(i).
(j) Amendment. Amend this Agreement.
(k) Additional Capital Contributions. Permit Members to
make additional Capital Contributions.
(l) Litigation. Commence, conduct or settle any litigation
or legal proceeding.
(m) Borrowings. Borrow any money in excess of $500.00.
(n) Contracts. Enter into any contract requiring total
payments by or to the Company in excess of $500.00.
(o) Personnel. Hire any personnel.
(p) Bank Accounts. Open any bank accounts and determine
authorized signatories for such accounts.
(q) Compensation of Manager. Pay compensation to the Managers.
4.4. Activities of Manager. The Managers shall devote so much of
their time to the affairs of the Company as in their judgment the conduct of
the Company's business shall reasonably require and the Managers shall not be
obligated to do or perform any act or thing in connection with the business of
the Company not expressly set forth herein. During the first year, the two
Managers will meet monthly in person or by phone at a mutually convenient time
and place to discuss the affairs of the Company. Thereafter, the Managers will
meet at a minimum of one time per quarter.
4.5. Exculpation. A Manager shall not be liable to any Member or the
Company for any act or failure to act on behalf of the Company, unless such act
or failure to act resulted from such Manager's willful misfeasance or gross
negligence. Such Manager may consult with counsel and accountants in respect
of Company affairs and shall be fully protected and justified in any
action or inaction which is taken in accordance with the advice or opinion of
such counsel or accountants.
4.6. Indemnification. The Company, out of its own assets and not out
of the assets of any Member, shall indemnify and hold harmless any Manager from
and against any loss, expense, judgment, settlement cost, fee and related
expenses (including attorneys' fees and expenses), costs or damages suffered or
sustained by reason of being or having been a Manager or arising out of or in
connection with action or failure to act unless such act or failure to act
was the result of the Manager's fraud, willful misfeasance or gross negligence.
The Company shall advance reasonable attorneys' fees and other costs and
expenses incurred by such Manager in connection with the defense of any action
or proceeding which arises out of conduct which is the subject of the
indemnification provided hereunder, subject to the agreement of such
Manager to reimburse the Company for such advance to the extent that it shall
finally be determined by a court of competent jurisdiction that such Manager
was not entitled to indemnification under this Section 4.6. Notwithstanding
the foregoing, the provisions of this Section 4.6 shall not be construed so as
to provide for the indemnification of such Manager for any liability to the
extent (but only to the extent) that such indemnification would be in
violation of applicable law.
4.7. Payment of Costs and Expenses.
(a) Each Member shall pay its own legal and accounting fees
and other costs and expenses incurred in connection with the initial
structuring and organization of the Company.
(b) The Company shall be responsible for the payment of all
legal and accounting expenses relating to the Company's operations and
financial statements, and all insurance and other operating and general
overhead expenses of the Company.
4.8. Resolution of Deadlocks. In the event of a deadlock among the
Managers with respect to any action to be taken, as declared in writing by
either of the Managers, the deadlock may be resolved by agreement between all
of the Members. Failing resolution by the Members, the Members shall enter
into Arbitration as defined in Section 12 herein.
ARTICLE V
Capital Contributions and Capital Accounts
5.1. Capital Contributions. Each of the Members hereby agrees to
contribute to the Company the amount set forth in Schedule A promptly following
the execution of this Agreement. These contributions shall constitute the
initial amount of each Member's Capital Contribution. No Member shall be
obligated to make any additional Capital Contribution to the Company. Members
may make additional Capital Contributions in cash or property with the consent
of all of the Members. No interest shall be paid on any Capital Contribution
by any Member.
5.2. Capital Accounts. A separate Capital Account shall be
established and maintained for each Member in compliance with Regulations Sub.
Sec. 1.704-1(b). The provisions of this Agreement shall be interpreted and
applied in a manner consistent with such section of the Regulations.
5.3. Determination of Certain Matters. Except as otherwise
provided in Article X, all matters concerning the valuation of assets of the
Company, and the allocation of Income, Loss, items of income, deduction, gain,
loss, credit, accounting procedures and other matters among the Members not
expressly provided for by the terms of this Agreement shall be determined by
the Managers.
ARTICLE VI
Allocations
6.1. General Allocations. Except as provided in Section 6.2 below,
Income and Loss(es) for each Fiscal Year from operations of the Company shall
be allocated among the Members as follows:
(a) Except as set forth in Section 6.1 (c), Income or Loss(es)
attributable to Water Products shall be allocated (i) 50% to each of
Membrex and ImmuCell during the period from the commencement of this
Agreement through the date of the second anniversary of the first
commercial sale of a Product (the "Second Anniversary Commercial Sale
Date") and (ii) 55% to Membrex and 45% to ImmuCell commencing on the
day following the Second Anniversary Commercial Sale Date and
thereafter during the remainder of the term of this Agreement; and
(b) Except as set forth in Section 6.1 (c), Income or Loss(es)
attributable to Food and Beverage Products shall be allocated 90% to
Membrex and 10% to ImmuCell during the entire term of this agreement.
(c) In the event the Company grants a license to any third
party to make, use and sell the Company Products, the up-front license
fees payable to the Company during the period from commencement of this
Agreement through the Second Anniversary Commercial Sale Date shall be
allocated 50% to each of Membrex and ImmuCell. Any up-front license
fees payable to the Company commencing on the day following the
Second Anniversary Commercial Sale Date and thereafter during the
remainder term of this Agreement shall be allocated as set forth in
this Section 6.1 (a) (ii) and (b) as may be applicable.
6.2. Special Allocations. Notwithstanding any other provisions of
this Article VI, the following special allocations shall be made in the
following order:
(a) Minimum Gain Chargeback. If there is a net decrease in
Company Minimum Gain during any Fiscal Year, the Members shall be
specially allocated Gross Income for such Fiscal Year (and, if
necessary, subsequent Fiscal Years) in an amount equal to the
portion of such Member's share of the net decrease in Company Minimum
Gain, determined in accordance with Regulation Sub. Sec. 1.704-2(g)(2).
Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to the
Members pursuant thereto. The items to be so allocated shall be
determined in accordance with Regulation Sub. Sec. 1.704-2(f)(6). This
Section 6.2(a) is intended to comply with the minimum gain chargeback
requirement in such section of the Regulations and shall be interpreted
consistently therewith.
(b) Member Nonrecourse Debt Chargeback. If, during any Fiscal
Year of the Company, there is a net decrease in Member Nonrecourse Debt
Minimum Gain (as such term is defined by Regulation Sub. Sec.
1.704-2(i) but substituting the term "Member" for the term "partner" as
the context requires) then each Member shall be specially allocated
Gross Income for such Fiscal Year (and, if necessary, for subsequent
Fiscal Years) in the manner provided in Regulation Sub. Sec.
1.704-2(i). This Section 6.2(b) is intended to comply with the partner
nonrecourse debt chargeback provisions of Regulation Sub. Sec.
1.704-2(i).
(c) Nonrecourse Deductions. Any Nonrecourse Deductions for any
Fiscal Year or other period shall be specially allocated to the Members
in proportion to the allocation of total Income and Loss(es) for such
Fiscal Year.
(d) Member Nonrecourse Deductions. Member nonrecourse
deductions (as defined in Regulation Sub. Sec. 1.704-2(i)(2) but
substituting the term "Member" for the term "partner" as the context
requires) shall be allocated as prescribed in Regulation Sub.
Sec. 1.704-2(i)(1).
(e) Limitations. No allocations of items of Loss shall be made
to a Member if such allocation would cause or increase a deficit in
such Member's Adjusted Capital Account. Any such item shall instead be
allocated to other Members to the extent of, and in proportion to,
their positive Adjusted Capital Accounts.
(f) Qualified Income Offset. In the event any Member
unexpectedly receives any adjustments, allocations or distributions
described in Regulations Sub. Sec. 1.704-1(b)(2)(ii)(d)(4), (5) or (6),
Gross Income shall be specially allocated to each such Member in an
amount and manner sufficient to eliminate, to the extent required by
the Regulations, the Adjusted Capital Account Deficit of such Member as
quickly as possible provided that an allocation pursuant to this
Section 6.2(f) shall be made only if and to the extent that such Member
would have an Adjusted Capital Account Deficit after all other
allocations provided for in Section 6.1 have been tentatively made as
if this Section 6.2(f) were not in the Agreement.
(g) Curative Allocations. Any special allocations pursuant to
Sections 6.2(e) and (f) shall be taken into account in computing
subsequent allocations pursuant to Article VI, so that the allocations
of Income and Loss allocated to each Member pursuant to Article VI
shall be equal to the allocations of Income and Loss that would have
been allocated to each Member pursuant to the provisions of Article VI
if the adjustments, allocations, or distributions and the resulting
special allocations pursuant to Sections 6.2(e) and (f) had not
occurred.
6.3. Allocations for Tax Purposes. Taxable income, gain, loss or
deduction of the Company (as well as any credits and the basis of property to
which such credits apply) as determined for federal income tax purposes shall
be allocated in the same manner as the corresponding Income or Loss is
allocated for purposes of adjusting Capital Accounts hereunder. In accordance
with Code Section 704(c) and the Regulations thereunder, income, gain, loss and
deduction with respect to any property contributed to the capital of the
Company shall, solely for tax purposes, be allocated among the Members so as to
take account of any variation between the adjusted basis of such property to
the Company for Federal income tax purposes and its initial book value. For
purposes of making such allocations in accordance with Code Section 704(c), the
Company shall use the so-called "traditional" method with curative allocations"
within the meaning of Regulations Section 1.704-3(c).
6.4 Allocation of Expenses Between Products. Any expenses,
deductions or losses directly attributable to Water Products or Food and
Beverage Products, respectively, shall be allocated in whole to such Water
Products or Food and Beverage Products for purposes of determining Income and
Loss(es) attributable to Water Products and Food and Beverage Products pursuant
to Section 6.1 hereof.
ARTICLE VII
Distributions and Withdrawals
7.1. Distributions. Upon determination by the Managers and subject to
the reasonably anticipated business needs and opportunities of the Company,
including the establishment of any reserves deemed necessary, amounts available
for distribution by the Company, if any, shall be distributed to the Members
not less frequently than annually, as follows:
(a) except as set forth in Section 7.1(c) net amounts
resulting from the sale of Water Products shall be distributed (i) 50%
to each of Membrex and ImmuCell during the period from the commencement
of this Agreement through the Second Anniversary Commercial Sale Date
and (ii) 55% to Membrex and 45% to ImmuCell commencing on the day
following the Second Anniversary Commercial Sale Date and thereafter
during the remainder of the term of this Agreement; and
(b) except as set forth in Section 7.1(c) net amounts
resulting from the sale of Food and Beverage Products shall be
distributed 90% to Membrex and 10% to ImmuCell during the entire term
of the Agreement.
(c) net amounts resulting from any up-front license fees
payable to the Company during the period from commencement of this
Agreement through the Second Anniversary Commercial Sale Date shall be
distributed 50% to each of Membrex and ImmuCell. Any up-front license
fees payable to the Company commencing on the day following the Second
Anniversary Commercial Sale Date and thereafter during the remainder
term of this Agreement shall be distributed as set forth in Section 6.1
(a) (ii) and (b).
7.2. Withdrawals. Except as provided in this Agreement, no Member
shall be entitled to withdraw from the Company all or any part of its Capital
Account. A Member, irrespective of the nature of its Capital Contributions,
shall only have the right to receive distributions in cash, although such
Member may receive a distribution in kind upon the approval of the Members.
7.3. Conditions. Other than as provided in the Membrex and ImmuCell
License Agreements (as defined herein), including without limitation, an event
contained in Section 6 of the License Agreement, no Member shall have the right
to withdraw from the Company all or any part of its Capital Account or Capital
Contribution pursuant to Section 7.2 until:
(a) all liabilities of the Company have been paid or there
remains property of the Company sufficient to pay them; or
(b) the consent of all of the Members is obtained.
7.4. Source of Distributions. Each Member shall look solely to the
assets of the Company for all distributions with respect to the Company and the
Member's Capital Contributions thereto and shall have no recourse therefor
(upon dissolution or otherwise) against the other Members. No Member shall
have any right to demand or receive property other than cash upon dissolution
and termination of the Company.
7.5. Tax Withholding. The Managers may withhold taxes from any
allocation or distribution to any Member to the extent required by the Code or
any other applicable law. For purposes of this Agreement, any taxes so
withheld by the Company shall be deemed to be a distribution or payment to such
Member, and the Managers shall reduce the amount otherwise distributable or
allocable to such Member pursuant to this Agreement and shall reduce the
Capital Account of such Member accordingly.
ARTICLE VIII
Transfers of Members' Interests
8.1. Transfer of Interest. No Member may sell, assign, transfer,
pledge, donate, alienate, hypothecate, encumber or otherwise dispose of its
Interest in the Company (hereinafter "Transfer") except with the prior written
consent of all of the nontransferring Members, which consent may be withheld in
the Members' sole discretion. Failure to approve a proposed transfer within
thirty (30) days shall be deemed a rejection. Any transfer of Interest made in
violation of this Section shall be deemed void. After the date on which final
regulations issued by the Treasury Department make these provisions unnecessary
for classification of the Company as a partnership for federal income tax
purposes, the provisions of this Article VIII shall be inapplicable to the
sale, merger or transfer of substantially all the assets of Membrex or
ImmuCell.
8.2. Conditions of Transfer. No Transfer of an Interest shall be
effective unless:
(a) The transferee on or prior to the date of Transfer agrees in
writing to be bound by all the terms and conditions of this Agreement;
and
(b) The transferee on or prior to the date of transfer agrees in
writing to assume all obligations and liabilities of the Member from
whom such transferee is receiving the transferred Interest.
8.3. Admission of New Members.
(a) No Person shall be admitted as a Member of the Company after
the date of this Agreement without the written approval of all of the
Members.
(b) Upon admission of a new Member in accordance with the Act
and this Agreement, the Manager shall establish a Capital Account which
shall be credited with the Capital Contribution of the new Member, and
Schedule A shall be adjusted accordingly.
8.4. Involuntary Assignment by a Member.
(a) In the event a Member's Interest is taken by levy,
foreclosure, charging order, execution or other similar involuntary
proceeding, the Company shall not dissolve, but the statutory or other
involuntary assignee of said interest shall be entitled to no more
than to receive the distributions, in accordance with Section 7.1, and
allocations of Income and Losses attributable to the Member's Interest
in the Company, in accordance with Section 6.1. In no event shall said
assignee have the right to interfere with the management or the
administration of the Company's business, assets, or affairs, or to
become a Member except as provided in Section 8.3.
(b) Upon any such event, the Company shall promptly notify the
other Members, including in such notice the name and address of the
transferee or proposed transferee and the purchase price determined
pursuant to the following paragraph. The other Members shall have an
option, exercisable within thirty (30) days of receipt of such
notice, to purchase the Interest subject to levy, foreclosure, charging
order, execution or similar proceeding in proportion to their
respective Percentage Interests, or in such other proportion as they
may agree. The other Members shall give notice of exercise of their
option to purchase to the Member (or former Member), the transferee (or
proposed transferee) and the Company. If any Member fails or declines
to exercise the option to purchase in this paragraph, then that portion
of the Interest not so purchased may be acquired by the other Members
in proportion to their respective Percentage Interests or in such other
proportion as they may agree.
(c) The purchase price shall be 90% of fair market value,
determined by agreement of the transferring party and the Company
(represented by the Manager associated with the non-transferring
Member). If agreement on fair market value cannot be reached, then a
valuation shall be done by an independent appraiser acceptable to
both Managers. If such valuation by an independent appraiser is still
not agreeable to both Managers, the fair market value issue shall be
referred to arbitration pursuant to Article 12. The Company need not
give notice of the right to purchase the transferred Interest to the
Members until the purchase price has been determined hereunder.
8.5. Withdrawal of Members. Except as this Agreement otherwise
expressly provides, no Member shall have the right or the power to withdraw or
resign from the Company without the consent of all of the Members.
ARTICLE IX
Dissolution
9.1. Dissolution. The Company shall be dissolved and its affairs
wound up on the first to occur of the following and not upon the occurrence of
any other event:
(a) The distributions to the Members as provided in Section 7.1
shall fail to equal or exceed $100,000 in the aggregate in respect of
any fiscal year commencing with the fiscal year ending December 31,
1998.
(b) Subject to Section 9.7 the death, retirement, resignation,
expulsion, bankruptcy or dissolution of any Member; provided, however,
that if an event specified in this clause (b) occurs with respect to a
Member and there are at least two Members remaining, then the Company
shall be continued upon the election, to be made within ninety (90)
days of receipt of notice of the event giving rise to the dissolution
of the Company, of all of the remaining Members;
(c) Entry of a decree of judicial dissolution of the Company;
(d) The sale or other disposition of all or substantially all
of the assets or licenses as provided herein, of the Company; or
(e) Vote of all of the Members.
9.2. Winding Up and Liquidation. Upon the dissolution of the
Company, the Company shall cease to engage in any further business, except to
the extent necessary to perform existing obligations, and shall wind up its
affairs and liquidate its assets. The Managers shall appoint a liquidator who
shall wind up and liquidate the Company's business and affairs. During the
course of liquidation, the Members shall continue to share Income and Loss(es)
as provided in Article VI of this Agreement.
9.3. Liabilities. Liquidation shall continue until the Company's
affairs are in such condition that there can be a final accounting, showing
that all fixed or liquidated obligations and liabilities of the Company are
satisfied or can be adequately provided for under this Agreement. The
assumption or guarantee in good faith by one or more financially responsible
persons shall be deemed to be an adequate means of providing for such
obligations and liabilities. When the liquidator has determined that there can
be a final accounting, the liquidator shall establish a date for the
distribution of the proceeds of liquidation of the
Company (the "Distribution Date"). The net proceeds of liquidation of the
Company shall be distributed to the Members as provided in Section 9.5 hereof
not later than the Distribution Date.
9.4. Settling of Accounts. Subject to any applicable provisions of
the Act, upon the dissolution and liquidation of the Company, the proceeds of
liquidation shall be applied as follows: (i) first, to pay all expenses of
liquidation and winding up; (ii) second, to pay all debts, obligations and
liabilities of the Company in the order of priority as provided by law and
(iii) to establish reasonable reserves for any remaining contingent or
unforeseen liabilities of the Company not otherwise provided for, which
reserves shall be maintained by the liquidator on behalf of the Company in a
regular interest-bearing trust account for a reasonable period of time
as determined by the liquidator. If any excess funds remain in such reserve at
the end of such reasonable time, then such remaining funds shall be distributed
by the Company to the Members pursuant to Section 9.5 hereof.
9.5. Distribution of Proceeds. Subject to any restrictions contained
in the Act, upon final liquidation of the Company the net proceeds of
liquidation, if any, shall be distributed to the Members in proportion to the
positive balances of their Capital Accounts.
9.6. Filing. Upon dissolution and liquidation of the Company, the
party or parties acting as the liquidator shall cause to be executed and filed
with the Secretary of State articles of dissolution in accordance with the Act.
9.7 (a) Event. If the amendments to the Regulations under
Sections 301.7701-1 through 301.7701-4 thereof proposed on May 9, 1996 are
promulgated in such a form (the "Final Regulations") that the modification to
this Agreement set forth in Section 9.7(b) would not be relevant to a
determination of whether the Company would be classified for Federal
income tax purposes as either (i) a partnership (in the event that more than
one member remains) or (ii) a sole proprietorship (in the event that only one
member remains) (the "Indicated Modification"), then the Indicated Modification
will be deemed to have been adopted with respect to this Agreement from and
after the first day of the first taxable year of the Company as to which such
Final Regulations are applicable in respect of the Indicated Modification.
(b) Potential Indicated Modification. Subject to Section
9.7(a), and contrary to Section 9.1 above, the Company shall not dissolve in
the event of the death, retirement, resignation, expulsion, bankruptcy or
dissolution of any Member.
ARTICLE X
Tax Returns; Reports to Members
10.1. Filing of Tax Returns. The Manager shall prepare and file, or
cause the Company's accountants to prepare and file, a federal information tax
return in compliance with Section 6031 of the Code, consistent with the Code
and the Regulations, and any required state
and local income tax and information returns for each tax year of the Company,
subject to the prior approval of the Tax Matters Member. Any provisions hereof
to the contrary notwithstanding, solely for U.S. federal income tax purposes,
each Member hereby recognizes that the Company will be subject to all
provisions of Subchapter K of Chapter 1 of Subtitle A of the Code; provided,
however, that the filing of U.S. Partnership Returns of Income shall not
be construed to extend the purposes of the Company or expand the obligations or
liabilities of the Members.
10.2. Tax Matters Member. As used herein, "Tax Matters Member" shall
have the same meaning as "tax matters partner" as used in the Code. For all
purposes of Code Sections 6221 through 6232, the Tax Matters Member shall make
all tax elections available to the Company in such manner as he determines is
in the best interest of the Members and consistent with the Code and the
Regulations. In the event a tax controversy shall arise, the Tax Matters
Member, shall employ such attorneys and accountants and other experts to
represent the Company as the Tax Matters Member determines to be appropriate.
The cost of pursuing any tax controversy shall be borne exclusively by the
Members affected by the matter in controversy. The Tax Matters Member, with
the approval of those Members of the Company affected by any tax claim or
controversy, shall have exclusive authority to settle any income tax
controversy or initiate any income tax proceeding required to be conducted,
maintained or settled in the name of the Company, provided such action imposes
no financial or other liability on the Company, its property, or any Member not
affected by such claim, controversy, proceeding or settlement. The Tax Matters
Member shall be a Member appointed by the Members to serve in such capacity.
The initial Tax Matters Member shall be ImmuCell Corporation acting through
Thomas C. Hatch.
10.3. Reports to Members. As soon as practicable after the end of
each quarter of each Fiscal Year, the Managers shall deliver to each Member an
unaudited balance sheet and income statement for the Company and a status
report of the Company's activities. As soon as practicable after the end of
each Fiscal Year the Managers shall deliver to each member a balance
sheet and income statement for the Company and a statement of the Members'
capital, all reviewed by the Company's independent accountants. Within 90 days
after the end of each Fiscal Year, or as soon as practicable after receipt of
all necessary information by the Company, if later, the Company shall prepare
and mail to each Member and, to the extent necessary, to each former Member (or
such Member's legal representatives), a report setting forth in sufficient
detail such information as shall enable such Member or former Member (or such
Member's legal representatives) to prepare their respective federal, state and
local income tax returns in accordance with the laws, rules and regulations
then prevailing.
10.4. Records to be Kept. The Company shall keep at its principal
place of business or at such other office as shall be designated by the
Managers:
(a) A current list in alphabetical order of the full name and
last known business, residence or mailing address of each Member;
(b) A current list in alphabetical order of the full name and
last known business, residence or mailing address of each Manager;
(c) A copy of the filed Certificate of Formation and all
amendments thereto, together with executed copies of any powers of
attorney pursuant to which any document has been executed;
(d) Copies of this Agreement, and all amendments hereto;
(e) Copies of the Company's federal income tax returns and
reports, if any, for the five most recent years; and
(f) Copies of any financial statements of the Company for the
five most recent years.
10.5. Inspection of Company Records. The accounting books and
records set forth in Section 10.4 shall be open to inspection upon the
reasonable request of any Member at any reasonable time during usual business
hours, for a purpose reasonably related to such Member's interest as a Member.
Such inspection by a Member may be made in person or by agent or attorney, and
the right of inspection includes the right to copy and make extracts.
ARTICLE XI
Additional Agreements of the Members
11.1. License by Membrex. Membrex agrees to grant to the Company a
royalty-free right and licenses to make, have made, and sell under the Licensed
Membrex Technology the Company Product(s). The licenses related to Membrex
Membranes is restricted to the right to sell and use such membranes in the
Licensed Membrex Technology and specifically excludes any rights to manufacture
the Membrex Membranes, except as provided in the Membrex License Agreements.
The licenses to be granted to the Company and the terms thereof shall be
contained in a license agreement to be entered into between Membrex and the
Company contemporaneously upon the entering into by the Members of this
Agreement (the "Membrex License Agreement").
11.2. License by ImmuCell. ImmuCell agrees to grant to the Company a
royalty-free right and license to make, have made, and sell under the Licensed
ImmuCell Patent Application and the Licensed ImmuCell Reagents the Company
Product(s). The licenses to be granted to the Company shall be contained in
license agreements to be entered into between ImmuCell and the Company
contemporaneously upon the entering into by the Members of this Agreement (the
"ImmuCell License Agreements").
11.3. Sale of Components.
(a) Membrex Components. Membrex agrees to sell to the Company,
or at the option of the Company to the Marketing Partner, such amounts
of Membrex Components as shall be ordered from time to time by the
Company or the Marketing Partner, as the case may be, at Membrex'
direct cost as determined in accordance with generally accepted
accounting principles ("GAAP") and as described under the Membrex
License Agreements. The specific terms of the Membrex License
agreements shall guide all such sales.
(b) ImmuCell Components. ImmuCell agrees to sell to the
Company, or at the option of the Company to the Marketing Partner, such
amounts of ImmuCell Components as shall be ordered from time to time by
the Company or the Marketing Partner, as the case may be, at ImmuCell's
direct cost as determined in accordance with GAAP. The specific terms
of the ImmuCell License agreement shall guide all such sales.
11.4. Design of New VFF Device. Membrex agrees to apply a portion of
the initial distributions to be received by it under Section 7.1 hereof toward
the design of a new vortex flow filtration device and Membrex further agrees to
apply up to $60,000 of such initial distribution to the manufacture of the
necessary production molds and to produce such devices in accordance with
specifications to be agreed to between the Company and Membrex. Membrex is not
obligated to spend any moneys for development and/or molds above and
beyond any initial distributions to be received by it under Section 7.1.
11.5. Confidentiality Agreement. The Parties acknowledge that they
have previously entered into Secrecy Agreements dated October 18, 1994 and
October 24, 1994, (hereinafter the "Secrecy Agreement"). The Secrecy Agreement
is hereby incorporated herein and both Membrex and ImmuCell agree to extend
that Secrecy Agreement effective through December 31, 2001. To the extent that
there is a conflict between the terms of this Agreement and the Secrecy
Agreement, the terms and conditions of this Agreement shall control.
ARTICLE XII
Dispute Resolution
Subject to the terms of this Agreement, any dispute, claim or
controversy under this Agreement, including any dispute over the fair market
value of a Member's Interest, shall, upon written notice by either party, be
resolved by binding arbitration pursuant to such rules as the disputing parties
may agree, or if they cannot agree within thirty (30) days, upon written notice
of either party of its desire to do so, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (the "AAA"). In
rendering its decision, the arbitration tribunal shall apply the substantive
laws of the State of Delaware and interpret this Agreement in accordance with
its terms. The determination of the arbitration tribunal shall be conclusive
and binding upon the Parties hereto. The dispute will be decided by a panel
of three arbitrators to be appointed as provided in Section 13 of the AAA
Commercial Arbitration Rules.
The award of the arbitration tribunal may be, alternatively or
cumulatively, for monetary damages, an order requiring the performance of
non-monetary obligations (including specific performance) or any other
appropriate order or remedy. The arbitrators may issue interim awards and
order any provisions or measures which should be taken to preserve the
respective right of either party. The decision of the arbitrators may be
enforced in any tribunal of competent jurisdiction.
Each Member shall bear its own costs and expenses of the arbitration,
and the Members shall share equally the cost of the arbitrators; provided that
any Member instituting a claim or providing a defense under this Section which
the tribunal shall declare to be frivolous shall pay all costs and expenses,
including attorney's fees and costs, incurred in connection with such
arbitration.
The arbitration procedure herein shall be the exclusive remedy
available to the Members hereunder to resolve any dispute, claim or controversy
arising hereunder.
ARTICLE XIII
Miscellaneous
13.1. Representations and Warranties of the Members. Each of the
Members hereby represents and warrants that he has validly executed this
Agreement and the same constitutes the binding obligation of such Member. Each
of the Members has full power, authority and capacity to enter into this
Agreement and to carry out its respective obligations as described in
this Agreement.
13.2. Successors and Assigns. This Agreement shall be binding on the
executors, administrators, heirs, and successors and assigns of the Members.
13.3. Amendments. The terms and provisions of this Agreement may be
modified or amended at any time and from time to time with the written consent
of all of the Members.
13.4. Choice of Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware, without regard to Delaware
choice of law provisions.
13.5. Notices. Each notice relating to this Agreement shall be in
writing and delivered in person, by facsimile or by registered or certified
mail. The receipt of any notice transmitted by facsimile must be confirmed by
any means acceptable in the preceding sentence to be effective; provided,
however, that such a confirmation does not, in turn, have to be confirmed.
All notices to the Company shall be addressed to its principal office and place
of business. All notices addressed to a Member shall be addressed to such
Member at the address listed in
Schedule A attached hereto. Any Member may designate a new address by notice
to that effect given to the Company. Unless otherwise specifically provided in
this Agreement, a notice shall be deemed to have been effectively given upon
receipt.
13.6. Headings. The titles of the Articles and the headings of the
Sections of this Agreement are for convenience of reference only, and are not
to be considered in constructing the terms and provisions of this Agreement.
13.7. Counterparts. This Agreement may be executed upon an original
and one or more duplicate originals, including on a counterpart execution page,
all of which taken together shall constitute one agreement.
13.8. Severability. If any term or provision of this Agreement is for
any reason deemed illegal or invalid, such illegality or invalidity shall not
affect the validity of the remainder of this Agreement, and each such term or
provision shall be valid and enforceable to the fullest extent permitted by
law.
13.9. Seal. The Managers may adopt a seal of the Company in such form
as the Manager shall decide.
13.10. Gender and Number. All nouns, pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular
or plural as the context may require.
13.11. Force Majeure. The Members and Managers shall not be liable
for damages due to delay or failure to perform any obligation under this
Agreement (other than payment of money) if such delay or failure results
directly or indirectly from circumstances beyond the reasonable control of such
party. Such circumstances shall include but shall not be limited to
acts of God, acts of war, civil commotions, riots, strikes, lockouts or other
labor disturbances, accident, fire, water damage, flood or other natural
catastrophe. Any party affected by a condition of Force Majeure shall use
reasonable efforts to remedy such conditions to enable itself to resume
performance, except that no party shall be obligated to settle a strike,
lockout or other labor disturbance on terms other than at its complete
discretion.
13.12. Confidentiality. The Members acknowledge that during the course
of this Agreement, it may be necessary for either party to disclose its
confidential, proprietary information to the other party. Notwithstanding the
provisions of that Secrecy Agreement described in Section 11.5, each Member
shall have the obligation to identify all PROPRIETARY INFORMATION (as defined
as Information in the Secrecy Agreement) that it has disclosed to the other
Member or to the Company to date. For PROPRIETARY INFORMATION disclosed
after the date of execution of this Agreement, the parties shall have the
obligation to designate that information that is PROPRIETARY INFORMATION under
the Secrecy Agreement. If PROPRIETARY INFORMATION is disclosed orally, the
disclosing party shall have the obligation to identify the information as
PROPRIETARY INFORMATION at the time of disclosure and confirm in writing that
such information is PROPRIETARY INFORMATION within thirty (30) days after such
oral disclosure.
13.13. Prior Agreement. This Agreement supersedes all prior agreements
between the Members, except for the Secrecy Agreement which will remain in
effect to the extent provided herein.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the date first set forth above.
MEMBERS:
IMMUCELL CORPORATION
By: /s/: Thomas C. Hatch 9/17/96
Its: President
MEMBREX, INC.
By: /s/: Malcolm R. Kahn 9/17/96
Its: President
EXHIBIT I
CERTIFICATE OF FORMATION
OF
CLEARWATER DIAGNOSTICS COMPANY, L.L.C.
FIRST: The name of the limited liability company is:
Clearwater Diagnostics Company, L.L.C.
SECOND: Its registered office in the State of Delaware is to be located at
Corporation Trust Center, 1209 Orange Street in the City of Wilmington,
County of New Castle, 19801, and its registered agent at such address
is The Corporation Trust Company.
THIRD: The latest date on which the limited liability company is to dissolve
is January 1, 2035.
IN WITNESS WHEREOF, the undersigned, being the individual forming the Company,
has executed, signed and acknowledged this Certificate of Formation this 17th
day of September, 1996.
September 17, 1996
/s/: Jeffrey A.
Clopeck
Jeffrey A. Clopeck
SCHEDULE A
NAMES, ADDRESSES, CAPITAL CONTRIBUTIONS AND
PERCENTAGE INTERESTS OF MEMBERS
Percentage
Member Type Capital Contribution Interest
ImmuCell Corporation Cash $5,000 50%
56 Evergreen Drive
Portland, Maine 04103
Membrex, Inc. Property $5,000 (Agreed-Upon Value
155 Route 46 West of 2 used Benchmark Systems) 50%
Fairfield, New Jersey 07004