Exhibit 3.3
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
BIORAL NUTRIENT DELIVERY, LLC
Dated effective as of October 1, 2003
THE MEMBERSHIP SHARES IN BIORAL NUTRIENT DELIVERY, LLC (THE "SHARES") ARE
SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN THIS AGREEMENT AND THE
OTHER TERMS AND CONDITIONS OF THIS AGREEMENT. NEITHER THE SHARES NOR ANY PART
THEREOF MAY BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR
TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF
THIS AGREEMENT AND (I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER ANY
APPLICABLE STATE SECURITIES LAWS OR IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER SUCH SECURITIES LAWS OR WHICH IS OTHERWISE IN COMPLIANCE WITH
SUCH SECURITIES LAWS AND (II) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR IN A
TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR WHICH
IS OTHERWISE IN COMPLIANCE WITH THE SECURITIES ACT.
TABLE OF CONTENTS
Page
----
Section 1.1 Name..................................................................................1
----
Section 1.2 Formation.............................................................................1
---------
Section 1.3 Principal Business Office.............................................................2
-------------------------
Section 1.4 Registered Office and Agent...........................................................2
---------------------------
Section 1.5 Term of the Company...................................................................2
-------------------
Section 1.6 Fiscal Year...........................................................................2
-----------
Section 2.1 Purpose...............................................................................2
-------
Section 2.2 Powers................................................................................2
------
Section 3.1 Membership Shares.....................................................................3
-----------------
Section 3.2 Percentage Interest...................................................................4
-------------------
Section 3.3 Capital Contributions.................................................................4
---------------------
Section 3.4 Partition.............................................................................4
---------
Section 3.5 No Interest on Capital................................................................4
----------------------
Section 3.6 Withdrawal............................................................................4
----------
Section 3.7 Distributions of Class B Shares.......................................................5
-------------------------------
Section 3.8 Substitute and Additional Members.....................................................6
---------------------------------
Section 3.9 Company Reorganization................................................................7
----------------------
Section 3.10 MM Option.............................................................................7
---------
Section 4.1 Allocation of Profits and Loss........................................................7
------------------------------
Section 4.2 Distributions.........................................................................8
-------------
Section 4.3 Capital Accounts......................................................................8
----------------
Section 4.4 Book/Tax Disparities; Section 754 Elections; etc......................................8
------------------------------------------------
Section 4.5 Certain Tax-Related Definitions.......................................................9
-------------------------------
Section 4.6 Regulatory Allocations, Qualified Income Offset and Minimum Gain Chargebacks..........9
----------------------------------------------------------------------------
Section 5.1 Management by the Board of Directors.................................................10
------------------------------------
Section 5.2 Officers.............................................................................11
--------
Section 5.3 Class B Share Incentive Plan.........................................................11
----------------------------
Section 5.4 Reliance by Third Parties............................................................12
-------------------------
-i-
Section 5.5 Other Business Interests.............................................................12
------------------------
Section 6.1 Books, Records and Financial Statements..............................................12
---------------------------------------
Section 6.2 Company Audits.......................................................................12
--------------
Section 6.3 Tax Matters Partner..................................................................13
-------------------
Section 6.4 Taxation as Partnership..............................................................13
-----------------------
Section 7.1 Liability............................................................................13
---------
Section 7.2 Exculpation..........................................................................13
-----------
Section 7.3 Indemnification......................................................................14
---------------
Section 7.4 Expenses.............................................................................14
--------
Section 7.5 Insurance............................................................................15
---------
Section 8.1 Transfers of Membership Shares.......................................................15
------------------------------
Section 8.2 Managing Member Right of First Refusal...............................................16
--------------------------------------
Section 9.1 Dissolution..........................................................................16
-----------
Section 9.2 Liquidation..........................................................................17
-----------
Section 9.3 Termination..........................................................................17
-----------
Section 9.4 Claims of the Members................................................................17
---------------------
Section 10.1 Separability of Provisions...........................................................17
--------------------------
Section 10.2 Counterparts.........................................................................17
------------
Section 10.3 Entire Agreement.....................................................................17
----------------
Section 10.4 Governing Law........................................................................18
-------------
Section 10.5 Arbitration..........................................................................18
-----------
Section 10.6 Remedies.............................................................................18
--------
Section 10.7 No Third Party Beneficiaries.........................................................19
----------------------------
Section 10.8 Amendments...........................................................................19
----------
Section 10.9 Interpretation.......................................................................19
--------------
Section 10.10 Captions.............................................................................19
--------
Section 10.11 Notices..............................................................................19
-------
Section 11.1 Certain Defined Terms................................................................20
---------------------
SCHEDULES
Schedule A Names, Contact Information and Membership Shares Held by the Members
Schedule B 2003 Class B Membership Share Option Plan
-ii-
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF
BIORAL NUTRIENT DELIVERY, LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT
(this "Agreement") of Bioral Nutrient Delivery, LLC, a Delaware limited
liability company (the "Company") is entered into as effective of the 1st day of
October, 2003, by BioDelivery Sciences International, Inc., a Delaware
corporation, as the managing member of the Company.
WHEREAS, the Company is governed by that certain Limited Liability
Company Agreement, dated January 8, 2003 (as amended on March 31, 2003, the
"Agreement"), by and among the Managing Member and the Persons listed on
Schedule A thereto, which Persons hold Class B Shares (as defined below) in the
Company (the "Class B Members" and, collectively with the Managing Member and
any future member of the Company admitted in accordance with the provisions of
this Agreement, the "Members");
WHEREAS, pursuant to Section 10.8 of the Agreement, amendments to the
Agreement may be made only by the Managing Member;
WHEREAS, in light of certain changes to the Company, the Managing
Member desires to amend and restated, in its entirety, the Agreement in the
manner provided for herein.
NOW, THEREFORE, in light of the foregoing and intending to be legally
bound, the Managing Member hereby amends and restates the Agreement in its
entirety as follows:
ARTICLE I
FORMATION; DURATION AND PURPOSES
Section 1.1 Name. The name of the limited liability company that is the
subject of this Agreement shall be Bioral Nutrient Delivery, LLC. Each Member
acknowledges that the word "Bioral" is a registered trademark of the Managing
Member.
Section 1.2 Formation.
(a) Pursuant to the Act, the Members hereby form the Company. The
Company's existence will commence upon the filing of a certificate of formation
of the Company (the "Certificate") by an authorized person (as such term is used
in Section 18-201 of the Act) designated by the Managing Member (the
"Organizer") in the office of the Delaware Secretary of State. The execution and
filing of such Certificate with the Delaware Secretary of State is hereby
authorized and approved by the Members. The rights, liabilities and obligations
of any Member with respect to the Company shall be determined in accordance with
the Act, the Certificate and this Agreement. To the extent anything contained in
this Agreement modifies, supplements or otherwise affects any such right,
liability, or obligation arising under the Act, this Agreement shall supersede
the Act to the extent not restricted thereby.
(b) The Organizer, any Officer (as defined below) and any other Person
appointed by the Board of Directors (as defined below) shall hereinafter be
authorized to cause the Company to be qualified, or registered under assumed or
fictitious name statutes or similar laws, in any jurisdiction in which the
Company transacts business. Such Person, as an authorized person within the
meaning of the Act, shall execute, deliver and file any certificates (and any
amendments and/or restatements thereof) necessary or desirable for the Company
to qualify to do business in any jurisdiction in which the Company may wish to
conduct business.
Section 1.3 Principal Business Office. The principal business office of
the Company shall be located at c/o UMDNJ - New Jersey Medical School,
Administrative Building 4, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, or
at such other location as may hereafter be determined by the Board of Directors.
Section 1.4 Registered Office and Agent. The name and address of the
registered agent of the Company for service of process on the Company in the
State of Delaware is National Registered Agents, Inc., 0 Xxxx Xxxxxxxxxx Xxxxxx,
Xxxxx 0X, Xxxxx, Xxxxxxxx, 00000, County of Kent. The name of the registered
agent of the Company at such address is National Registered Agents, Inc. At any
time, the Board of Directors may designate another registered agent and/or
registered office for the Company.
Section 1.5 Term of the Company. The term of the Company shall commence
on the date of the filing of the Certificate and shall be perpetual, unless the
Company is sooner terminated and dissolved pursuant to the terms hereof. No
Member may withdraw from the Company without the prior written consent of the
other Members, other than as expressly provided in this Agreement.
Section 1.6 Fiscal Year. The fiscal year of the Company shall end on
December 31st of each year.
ARTICLE II
PURPOSE AND POWERS OF THE COMPANY
Section 2.1 Purpose. The Company is formed for the objective and
purpose of, and the nature of the business to be conducted and promoted by the
Company is, engaging in any lawful act or activity for which limited liability
companies may be formed under the Act as may be determined by the Managing
Member and engaging in any and all activities necessary, convenient, desirable
or incidental to the foregoing. The initial purpose of the Company is to obtain
an exclusive world-wide perpetual sub-license to the Managing Member's
proprietary encochleation drug delivery technology for non-pharmaceutical use in
the processed food and beverage and personal care product industries for both
human and animal consumption.
Section 2.2 Powers. In furtherance of its purposes, the Company shall
have the power and is hereby authorized to take any and all actions necessary,
appropriate, proper, advisable, incidental or convenient to or for the
furtherance of the purposes set forth in Section 2.1, including, but not limited
to, the power to conduct its business, carry on its operations and have and
exercise the powers granted to a limited liability company by the Act in any
state,
2
territory, district or possession of the United States, or in any foreign
country that may be necessary, convenient or incidental to the accomplishment of
the purpose of the Company.
ARTICLE III
MEMBERS; MEMBERSIP SHARES
Section 3.1 Membership Shares.
(a) Generally. The limited liability company interests of the Company
shall be classified in two classes of shares (each such interest in the Company,
a "Membership Share" and collectively, the "Membership Shares"): Class A
Membership Shares (each, a "Class A Share" and collectively, the "Class A
Shares") and Class B Membership Shares (each, a "Class B Share" and
collectively, the "Class B Shares"). There shall be no limitation on the number
of Membership Shares which may be issued and/or outstanding at any time, subject
to the approval of the Board of Directors as to the timing of any such issuance
and amount thereof.
(b) Class A Shares. The Class A Shares will be held only by the
Managing Member and will grant the Managing Member the management and governance
rights contained in this Agreement. The Managing Member, as a holder of Class A
Shares, will be entitled to its pro rata portion (based on its Percentage
Interests) of distributions declared and paid by the Board of Directors.
(c) Class B Shares. The Class B Shares will be held by the Managing
Member and the Class B Members in accordance with the provisions of this
Agreement. The Class B Members will have no management, governance or approval
rights whatsoever relating to the business and operations of the Company. Each
Class B Member will be entitled to its pro rata portion (based on its Percentage
Interests) of distributions declared and paid by the Board of Directors.
(d) Other Securities. The Board of Directors is authorized to issue
additional Membership Shares, or any other class or type of debt or equity
securities of the Company (including options, warrants or rights to receive
Class B Shares or any other class or type of debt or equity securities of the
Company, including convertible securities) that the Board of Directors
designates, at such times and on such terms as the Board of Directors
determines. Any such action shall be memorialized, as applicable, in an
amendment and/or restatement to this Agreement executed by the Managing Member.
(e) Inclusions to "Membership Shares." For purposes of this Agreement,
a Member's aggregate "Membership Shares" shall include the entire ownership
interest of a Member in the Company at any time, including (a) the rights of
such Member to any and all benefits to which a Member may be entitled as
provided in this Agreement, together with the obligations of such Member to
comply with all the terms and provisions of this Agreement, (b) all income,
profits, Available Net Cash, fees or payments of whatever nature and all
distributions to which any Member would be entitled, now or at any time
hereafter, of whatsoever description or character; and (c) all of any Member's
present and future rights to and in its Capital Account, whether by way of
liquidating distributions or otherwise, and all of such
3
Member's right to receive or share in any surplus of the Company in the event of
the dissolution of the Company.
Section 3.2 Percentage Interest. A Member's percentage interest of the
outstanding Membership Shares (the "Percentage Interest") shall be calculated by
dividing the number of Membership Shares held by such Member (regardless of
class) by the aggregate number of Membership Shares outstanding (regardless of
class). The number and class of Membership Shares and the resulting Percentage
Interest of the Members shall be reflected on Schedule A hereto or on the books
and records of the transfer agent of the Company, which transfer agent shall be
selected (and removed and replaced, as the case may be) by the Managing Member
in its sole discretion. Schedule A hereto or such books and records shall be
amended from time to time to reflect the issuance of additional Membership
Shares and the admission of new Members, in each case in accordance with the
provisions of this Agreement.
Section 3.3 Capital Contributions. No Member shall be obligated to make
contributions of cash or other property to the Company (each, a "Capital
Contribution"). A Member may make a Capital Contribution or loan funds to the
Company with the prior written consent of the Managing Member, which consent may
be granted or withheld in the sole discretion of the Managing Member, for any
reason or no reason.
Section 3.4 Partition. Each Member waives any and all rights that it
may have to maintain an action for partition of the Company's property.
Section 3.5 No Interest on Capital. No Member shall be entitled to any
interest on any capital, if any, contributed by it to the Company.
Section 3.6 Withdrawal.
(a) Except in connection with a Transfer to a Permitted Transferee
(each as defined in Section 8.1 below) or a Transfer to which the Managing
Member consents pursuant to Section 8.1 hereof in which the transferee has been
admitted as a Substitute Member (as defined below) and has assumed the
obligations of a Member or as otherwise described herein, no Member shall have
the right to withdraw from the Company without the prior written consent of the
Managing Member (which consent may be withheld in Managing Member's sole
discretion, for any reason or no reason). Effective on the date of a permitted
withdrawal, such withdrawing Member shall be deemed to have withdrawn from the
Company and shall no longer be a Member for purposes of this Agreement. From and
after the effective date of such withdrawal, the withdrawing Member shall not be
entitled to receive any distributions from the Company unless the withdrawing
Member was a Member on the record date therefor.
(b) If a Member withdraws from the Company in violation of Section
3.6(a), such Member shall not be entitled to any distribution or payment with
respect to his, her or its Membership Shares in the Company and shall be liable
to the Company for breach of this Agreement.
4
Section 3.7 Distributions of Class B Shares.
(a) As of October 1, 2003, the Managing Member holds 7,085,862 Class B
Shares and has the right to acquire, from time to time in the future, 4,185,000
Class B Shares underlying the MM Option (as defined in Section 3.10 below) (such
11,270,862 Class B Shares, collectively, the "MM Class B Shares").
Notwithstanding any provision of this Agreement to the contrary (and assuming
the exercise, from time to time, of the MM Option as provided for herein), the
MM Class B Shares (or rights to purchase or other securities convertible into
such Class B Shares) may be distributed to or sold by the Managing Member to
current and/or future stockholders of the Managing Member or other Persons,
including, without limitation, as a dividend or other distribution or upon the
distribution by the Managing Member and subsequent exercise of rights to
purchase such MM Class B Shares.
(b) At the request of the Managing Member, the Company shall register
the MM Class B Shares (and/or the rights to purchase the MM Class B Shares)
distributed to the Managing Member's stockholders or other Class B Shares or
other securities of the Company (in this context, collectively, the "Registrable
Securities") with the Securities and Exchange Commission ("SEC") under the
Securities Act of 1933, as amended (together with the rules and regulations
promulgated thereunder, the "Securities Act") and/or the Securities Exchange Act
of 1934, as amended (together with the rules and regulations promulgated
thereunder, the "Exchange Act"), it being understood and agreed that neither the
MM Class B Shares nor any other debt or equity securities of the Company shall,
without the approval of the Managing Member in its sole discretion, be traded or
listed for quotation on any public market or exchange.
(c) The Members agree that, in connection with any such registration of
the Registrable Securities under the Securities Act, the Company shall:
(i) File with the SEC a registration statement with respect to
such Registrable Securities (a "Registration Statement") and use its
reasonable best efforts to cause that Registration Statement to become
effective as soon as possible;
(ii) When required by the Managing Member, and as
expeditiously as possible, prepare and file with the SEC any amendments
and supplements to the Registration Statement and the prospectus
included in the Registration Statement (the "Prospectus") as may be
necessary to comply in all material respects with the provisions of the
Securities Act and/or the Exchange Act (including the anti-fraud
provisions thereof) and to keep the Registration Statement effective
for so long as the Managing Member may require;
(iii) When required by the Managing Member, and as
expeditiously as possible, furnish to the Managing Member such
reasonable numbers of copies of the prospectus or information statement
included with the Registration Statement, including any preliminary
prospectus, in conformity with the requirements of the Securities Act
and the Exchange Act, and such other documents as the Managing Member
may reasonably request in order to facilitate the public distribution
or sale of the Registrable Securities owned by the Managing Member;
5
(iv) As expeditiously as possible, use its best efforts to
register or qualify the Registrable Securities covered by the
Registration Statement under the securities or Blue Sky laws of such
states as the Managing Member shall reasonably request, and do any and
all other acts and things that may be necessary or desirable to enable
the Managing Member to facilitate the public distribution or sale of
the Registrable Securities owned by the Managing Member;
(v) Promptly provide a transfer agent and registrar for all
such Registrable Securities not later than the effective date of such
Registration Statement;
(vi) As expeditiously as possible following the effectiveness
of such Registration Statement, notify the Managing Member of any
request by the SEC for the amending or supplementing of such
Registration Statement or prospectus;
(vii) Use its reasonable best efforts to obtain the lifting of
any stop order that might be issued suspending the effectiveness of
such Registration Statement at the earliest possible moment; and
(viii) Use its reasonable best efforts to file with the SEC in
a timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements).
Section 3.8 Substitute and Additional Members.
(a) Additional members may be admitted to the Company (the "Additional
Members") upon the issuance of Membership Shares to such Additional Members,
including, without limitation, upon the distributions contemplated by Section
3.7 hereof. No Additional Member and no Person who is the transferee or assignee
of all or a portion of the Membership Shares of a Member (a "Substitute Member")
shall be entitled to any of the rights and benefits under this Agreement of the
transferor or assignor of such interest (other than the right to distributions)
unless and until:
(i) the Additional Member or the Substitute Member, as the
case may be, shall execute and acknowledge any instrument reasonably
deemed by the Managing Member to be necessary to effectuate such
admission, which instrument shall include representations that such
Additional Member or Substitute Member or their Affiliates is not a
Prohibited Owner; and
(ii) the Additional Member or the Substitute Member, as the
case may be, shall accept and assume in writing (in a form determined
by the Board of Directors) all of the terms, conditions and obligations
of this Agreement applicable to the Membership Shares being acquired by
it.
(b) As promptly as is reasonably practicable after the admission of an
Additional Member or a Substitute Member in the Company, the Managing Member or
its designee shall amend this Agreement (including Schedule A annexed hereto) or
cause the books and records of the Company administered by the Company's
transfer agent to reflect the addition
6
of the Additional Member, or the addition of the Substitute Member and the
deletion of the Member substituted therefor, and to set forth the respective
designations, preferences and rights, as established by the Managing Member, of
the Membership Shares of such Additional Member or Substitute Member. The
Managing Member shall cause any such amendment to be dated and effective as of
the date upon which any such Additional Member or Substitute Member first
acquired the Membership Shares in question.
Section 3.9 Company Reorganization. If the Managing Member, in its sole
discretion, determines that conditions are favorable for the Company to
reorganize as a corporation, the Company may be reorganized as a corporation
and, in connection therewith, its equity interests (including but not limited to
the Class B Shares) may be reclassified as shares of stock (or securities
convertible into, or options to purchase, such shares of stock) in such
corporation on such terms and conditions as are approved by the Managing Member,
provided that the relative rights and preferences of the Class B Shares shall
not be materially modified. Each Member (including the Class B Members) or other
direct or indirect holder of Membership Shares will be required to execute and
deliver such instruments or documents as may be necessary or advisable in
connection with any such reorganization.
Section 3.10 MM Option.
(a) The Company hereby grants to the Managing Member an option (the "MM
Option") to purchase, in whole or in part, and from time to time in any amounts,
for the period beginning January 8, 2003 and ending January 8, 2008 (the "Option
Period"), an aggregate of 4,185,000 Class B Shares at a purchase price
throughout the Option Period of $0.01 per Class B Share.
(b) The MM Option shall be exercised by the Managing Member by giving
written notice thereof to the Company, which notice shall state the amount of
Class B Shares desired to be acquired by the Managing Member and the aggregate
purchase price for such Class B Shares. In connection with each exercise of the
MM Option during the Option Period, the Managing Member shall tender to the
Company the aggregate purchase price for the Class B Shares acquired no later
than five (5) days following its delivery of the written notice contemplated by
this Section 3.10(b).
(c) Upon payment by the Managing Member for the applicable Class B
Shares, an appropriate amendment to Schedule A hereto shall be made reflecting
the number of Class B Shares issued to the Managing Member and the resulting
changes to the Percentage Interests of each Member. The Managing Member shall
not be entitled to any preferential return on any capital contributed by it to
the Company in connection with the exercise or exercises of the MM Option and
shall only be entitled to a pro rata increase in its Percentage Interest.
ARTICLE IV
ALLOCATION OF PROFITS AND LOSS; DISTRIBUTIONS
Section 4.1 Allocation of Profits and Loss.
(a) Profits. Profits shall be allocated:
7
(i) First to each Member in an amount equal to the Loss
allocated to such Member pursuant to Section 4.1(b)(ii) hereof, then
(ii) Second, to each Member in an amount equal to the Loss
allocated to such Member pursuant to Section 4.1(b)(i) hereof, then
(iii) Third, to the Members pro rata in proportion to their
respective Percentage Interests.
(b) Loss. Loss shall be allocated:
(i) First, among Members with positive Capital Account
balances, until such balances have been reduced to zero, and then
(ii) Second, to the Members, pro rata in proportion to their
respective Percentage Interests.
Section 4.2 Distributions. Available Net Cash, if available, shall be
distributed by the Company at such time and in such amounts as shall be approved
by the Board of Directors, in its sole and absolute discretion, in the following
order of priority:
(a) First, to each Member, an amount sufficient for such Member to pay
his, her or its federal income taxes, if any, in respect of their share of the
Profits (as defined below) of the Company (in excess of prior allocations to
each Member of Loss (as defined below) of the Company), based on the highest
applicable federal income tax rate on individuals in effect at the time that
Profits are allocated to the Members; then
(b) Second, to the Members, pro rata, to the extent such Members have a
positive Capital Account balance, an amount equal to such Member's positive
Capital Account balance; and
(c) Thereafter, to the Members, pro rata in proportion to their
respective Percentage Interests. Distributions to which a Member is entitled
pursuant to this Section 4.2(c) shall be reduced by any distributions which such
Member received pursuant to Section 4.2(a) and (b) above.
Section 4.3 Capital Accounts. The Board of Directors shall establish
and maintain capital accounts ("Capital Account") for each Member. Capital
Accounts shall be maintained in accordance with Treasury Regulation
ss.1.704-1(b)(2)(iv) and shall be interpreted and applied in a manner consistent
therewith. If the Board of Directors shall determine that it is prudent to
modify the manner in which the Capital Accounts are computed in order to comply
with Treasury Regulation ss.1.704-1(b)(2)(iv), the Board of Directors may make
such modification.
Section 4.4 Book/Tax Disparities; Section 754 Elections; etc.
(a) In the case of contributed property, items of income, gain, loss,
deduction and credit, as determined for federal income tax purposes, shall be
allocated in a manner
8
consistent with the principles of Section 704(c) of the Code by using a method
described in Treasury Regulation ss.1.704-3(d) selected by the Board of
Directors, in its sole discretion, to take into account the difference between
the agreed value of such property and its adjusted tax basis at the time of
contribution or adjustment, as the case may be.
(b) All items of income, gain, loss, deduction and credit recognized by
the Company for federal income tax purposes and allocated to the Members in
accordance with the provisions hereof shall be determined without regard to any
election under Section 754 of the Code which may be made by Board of Directors
on behalf of the Company; provided, however, that such allocations, once made,
shall be adjusted as necessary or appropriate to take into account those
adjustments permitted by Section 734 and 743 of the Code.
Section 4.5 Certain Tax-Related Definitions.
(a) For purposes of this Agreement, the terms "Profit" or "Loss" mean,
for each fiscal year or other period, an amount equal to the Company's net
taxable income or loss for such year or period, determined in accordance with
Section 703(a) of the Code (for this purpose, all items of income, gain, loss or
deduction required to be stated separately pursuant to Section 703(a)(1) of the
Code shall be included in taxable income or loss), adjusted as follows: (i) any
income of the Company that is exempt from federal income tax and not otherwise
taken into account in computing Profit or Loss shall be added to such taxable
income or loss; (ii) any expenditures of the Company described in Section
705(a)(2)(B) of the Code or treated as described in such Section pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into
account in computing Profit or Loss, shall be subtracted from such taxable
income or loss; and (iii) in the event the Carrying Value (as defined below) of
any Company property is adjusted pursuant to Section 1.704-1(b)(2)(iv)(f) of the
Treasury Regulations or other pertinent sections of such Treasury Regulations,
the amount of such adjustment shall be taken into account for purposes of
computing Profit and Loss. Notwithstanding any other provisions, any items which
are specially allocated pursuant to Section 4.6 shall not be taken into account
in computing Profit or Loss.
(b) For purposes of computing Profit and Loss, the term "Carrying
Value" shall mean (A) with respect to contributed property, the agreed value of
such property, (B) with respect to property the book value of which is adjusted
pursuant to Treasury Regulation ss. 1.704-1(b)(2)(iv)(d), (e) or (f), the amount
determined by the Board of Directors, and (C) with respect to any other
property, the adjusted basis of such property for federal income tax purposes as
of the time of determination.
Section 4.6 Regulatory Allocations, Qualified Income Offset and Minimum
Gain Chargebacks. The provisions of this Agreement are intended to comply with
Code Section 704 and Treasury Regulations xx.xx. 1.704-1(b) and 1.704-2 and
shall be interpreted and applied in a manner consistent with such Section and
such Regulations. Notwithstanding anything to the contrary in this Agreement,
the Members shall make such allocations as may be required in order to comply
with Code Section 704 and Treasury Regulations xx.xx. 1.704-1(b) and 1.704-2
including any allocations necessary to satisfy the requirements for (i) a
"qualified income offset"; (ii) a "minimum gain chargeback"; and (iii) a
chargeback of "minimum gain attributable to partner nonrecourse debt" as such
terms are defined in Treasury Regulation xx.xx. 1.704-1(b) and 1.704-2.
9
ARTICLE V
MANAGEMENT
Section 5.1 Management by the Board of Directors.
(a) Powers. Subject to the oversight by the Managing Member and the
other rights of the Managing Member contained in this Agreement, the management
and control of the business and affairs of the Company shall be vested in a
board of directors (the "Board of Directors"), which shall have the power to do
any and all acts necessary, convenient or incidental to or for the furtherance
of the purposes of the Company, including all powers provided for in this
Agreement, the Act or otherwise. Any Officer or employee of the Company
authorized by the Board of Directors shall have the authority to bind the
Company. Without limiting the generality of the foregoing, the Board of
Directors shall establish overall policies for the Company, set long-range plans
and objectives and direct the conduct of the Company's Officers and employees.
No action shall be taken, sum expended, decision made or obligation incurred by
the Company with respect to any matter regarding the Company unless such matter
has been expressly approved by the Board of Directors as provided for herein.
(b) Composition. The Board of Directors shall consist of six (6)
individuals (each, a "Director" and collectively, the "Directors"), each of whom
shall be appointed from time to time by the Managing Member and shall serve at
the pleasure of the Managing Member. The Managing Member shall have the right to
remove any Director or all Directors at any time, with or without cause. Any
vacancy existing on the Board of Directors shall be filled by the Managing
Member. The initial Directors shall be:
Xxxxx X. Xxxxxx, Ph.D.
Xxxxx Xxxx
Xxxxxxxxxxx Xxxxxxx
Xxxxx Xxxxx-Fogerite, Ph.D.
Xxxxxxx X. X'Xxxxxxx, Xx., M.D., and
X.X. Xxxxxxxxxx.
(c) Meetings. The Board of Directors shall meet no less frequently than
quarterly and additionally at the request of the Managing Member, such request
to be made upon no less than three (3) business days notice by telephone, e-mail
or facsimile transmission, which notice may be waived in each instance. Each
such meeting shall be held at such date, time and place as the Managing Member
may determine. One or more Directors may participate in any meeting of the Board
via telephone conference call or other electronic device by which all Directors
may hear such Directors. A Director may attend a meeting by proxy, provided that
his proxyholder presents a written proxy at the meeting which empowers the
proxyholder to take any action that the Director could take if personally
present. A proxyholder must be another Director.
(d) Voting and other Actions. Each Director shall have one vote and may
also cast one vote on behalf of any Director for whom he or she holds a proxy.
All actions of the Board shall require the affirmative vote of a majority of the
Directors. No Director shall be liable to the Company or to the Managing Member
for any loss or damage sustained by the
10
Company or the Managing Member, unless the loss or damage shall have been the
result of fraud, deceit, or intentional misconduct.
(e) Action by Written Consent Without a Meeting. Any action that may be
taken at a meeting of the Board of Directors may be taken without a meeting if a
consent in writing setting forth the action so taken is signed by the required
number of Directors or by the Managing Member, as applicable. All such consents
shall be filed with the minutes of the Company and shall be maintained in the
Company records.
(f) Compensation. Except as determined and approved by the Managing
Member or as provided for in Section 5.3 hereof, Directors shall not be entitled
to compensation for acting as such, provided that a Director shall be reimbursed
by the Company for reasonable out-of-pocket expenses incurred to attend meetings
of the Board of Directors.
(g) Agency. No Director is an agent of the Company, nor can a Director
bind, or execute any instrument on behalf of, the Company.
Section 5.2 Officers.
(a) Generally. The day-to-day operations of the Company shall be under
the control of the officers of the Company duly appointed from time to time by
the Board of Directors and subject to the supervision and direction of the Board
of Directors (the "Officers"). The Officers of the Company shall include a
president or chief executive officer, a secretary and a chief financial officer
or treasurer and may include a chief operating officer, one or more vice
presidents and such other Officers as the Board of Directors may from time to
time consider appropriate. Such Officers shall exercise such duties as
customarily pertain to such offices as determined by the Board of Directors.
(b) Appointment. The Officers of the Company appointed by the Board of
Directors shall hold office until their successors are chosen by the Board of
Directors. Any Officer may be removed at any time by the Board of Directors. Any
vacancy occurring in any office of the Company shall be filled by the Board of
Directors.
(c) Compensation. Except as determined and approved by the Managing
Member or as provided for in Section 5.3 hereof, Officers shall not be entitled
to compensation for acting as such during the first twelve (12) months following
the formation of the Company, provided that Officers shall be reimbursed by the
Company for reasonable out-of-pocket expenses incurred in connection with the
duties assigned to them by the Board of Directors. Promptly following the one
(1) year anniversary of the formation of the Company, the Board of Directors
shall determine and agree with each Officer on a reasonable amount of
compensation for services rendered or to be rendered to the Company.
(d) The initial Officers of the Company shall be as follows: Xxxxxxx X.
X'Xxxxxxx, Xx., Chief Executive Officer and President; and Xxxxx X. XxXxxxx,
Secretary, Treasurer and Chief Financial Officer.
Section 5.3 Class B Share Incentive Plan. The Managing Member hereby
establishes the 2003 Class B Share Option Plan for the Company, a copy of which
is attached
11
hereto as Schedule B (the "Option Plan"). Pursuant to the Option Plan, the
Company may issue to Directors and Officers of the Company and third party
individuals or entities providing services to the Company ("Consultants")
options to purchase up to an aggregate of no more than 1,000,000 Class B Shares.
The Option Plan shall be administered by the Board of Directors pursuant to the
terms of the Option Plan.
Section 5.4 Reliance by Third Parties. Any Person dealing with the
Company, the Directors or any Officer or employee of the Company may rely upon a
certificate signed by the Managing Member as to:
(a) the identity of any of the Managing Member, any Director or
Officer;
(b) the persons who are authorized to execute and deliver any
instrument or document on behalf of the Company; or
(c) any act or failure to act by the Company or as to any other matter
whatsoever involving the Company.
Section 5.5 Other Business Interests. Any Member, Director or Officer,
or any Affiliate of any Member, may engage in or possess an interest in other
business ventures of every kind and description, independently or with others,
and may dedicate such time to such ventures as such Persons deem, in their
discretion, necessary. None of the Company or the other Members shall have any
rights in or to such ventures or the income or profits therefrom by virtue of
this Agreement. Without limiting the generality of the foregoing, the Members
acknowledge that: (i) Xxxxxxx X. X'Xxxxxxx, a Director and the initial President
and Chief Executive Officer of the Company, is also Chairman, President and
Chief Executive Officer of the Managing Member as well as the managing director
of The Xxxxxxx Capital Group, a group of affiliated of entities engaged in
business development activities, and (ii) Xxxxx X. XxXxxxx, the initial
Secretary, Treasurer and Chief Financial Officer of the Company, is also the
Secretary, Treasurer and Chief Financial Officer of the Managing Member.
ARTICLE VI
BOOKS AND RECORDS; TAX MATTERS
Section 6.1 Books, Records and Financial Statements. At all times
during the continuance of the Company, the Company shall maintain, at its
principal place of business, separate books of account for the Company that
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
with the operation of the Company's business. Such books of account, together
with a certified copy of this Agreement (including any amendments and/or
restatements hereof)and of the Certificate, shall at all times be maintained at
the principal place of business of the Company and shall be open to inspection
and examination at reasonable times by each Member and its duly authorized
representative for any purpose reasonably related to such Member's interest in
the Company.
Section 6.2 Company Audits. At any time at the sole discretion of the
Board of Directors, the financial statements of the Company may be audited by an
independent certified public accountant, selected by the Board of Directors,
with such audit to be accompanied by a
12
report of such accountant containing its opinion. The cost of such audit will be
an expense of the Company. A copy of any such audited financial statements and
accountant's reports will be made available for inspection by the Members.
Section 6.3 Tax Matters Partner. The Managing Member is hereby
designated as "Tax Matters Partner" of the Company for purposes of ss.6231(a)(7)
of the Code and shall have the power to manage and control, on behalf of the
Company, any administrative proceeding at the Company level with the Internal
Revenue Service relating to the determination of any item of Company income,
gain, loss, deduction or credit for federal income tax purposes.
Section 6.4 Taxation as Partnership. The Company shall be treated as a
partnership for U.S. federal income tax purposes.
ARTICLE VII
LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 7.1 Liability.
(a) Except as otherwise provided by the Act, the debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the Company, and the
Organizer, the Members, the Directors, the Officers and the employees of the
Company (each a "Covered Person" and collectively "Covered Persons") shall not
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Covered Person.
(b) Except as otherwise expressly required by law, a Member, in its
capacity as a Member of the Company, shall have no liability in excess of (i)
the amount of its Capital Contributions, (ii) its share of any assets and
undistributed profits of the Company and (iii) the amount of any distributions
wrongfully distributed to it.
Section 7.2 Exculpation.
(a) No Covered Person shall be liable to the Company, any Member or any
other Person who has an interest in the Company for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such Covered
Person in good faith in connection with the formation of the Company or on
behalf of the Company and in a manner reasonably believed to be within the scope
of the authority conferred on such Covered Person by this Agreement, except that
a Covered Person shall be liable for any such loss, damage or claim incurred by
reason of such Covered Person's gross negligence or willful misconduct.
(b) A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports or
statements presented to the Company or the Board of Directors by any Person as
to matters the Covered Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Company, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which distributions to Members might properly be paid.
13
Section 7.3 Indemnification.
(a) Covered Persons. To the full extent permitted by applicable law,
each Covered Person shall be entitled to indemnification from the Company for
any loss, damage or claim incurred by such Covered Person by reason of any act
or omission performed or omitted by such Covered Person in good faith on behalf
of the Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement, except that no
Covered Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Covered Person by reason of gross negligence or
willful misconduct with respect to such acts or omissions; provided, however,
that any indemnity under this Section 7.3 shall be provided out of and to the
extent of Company assets only, and no Member shall have personal liability on
account thereof.
(b) Notice of Claims. Any Covered Person seeking indemnification
hereunder (an "Indemnitee") shall promptly, and within 30 days after notice to
it (notice to Indemnitee being the filing of any action, receipt of any claim in
writing or similar form of actual notice) of any claim as to which it asserts a
right to indemnification, notify the party from whom indemnification is sought
(an "Indemnitor") of such claim. Indemnitee shall xxxx Indemnitor for any such
claims no more frequently than on a monthly basis, and Indemnitor shall promptly
pay (or cause to be paid) Indemnitee upon receipt of any such xxxx. The failure
of Indemnitee to give the notification to Indemnitor contemplated above in this
Section 7.3(b) shall not relieve Indemnitor from any liability or obligation
that it may have pursuant to this Agreement unless the failure to give such
notice within such time shall have been materially prejudicial to it, and in no
event shall the failure to give such notification relieve Indemnitor from any
liability it may have other than pursuant to this Agreement.
(c) Third Party Claims. If any claim for indemnification by Indemnitee
arises out of an action or claim by a Person other than Indemnitee, Indemnitor
may, by written notice to Indemnitee, undertake to conduct the defense thereof
and to take all other steps or proceedings to defeat or compromise any such
action or claim, including the employment of counsel; provided, that Indemnitor
shall reasonably consider the advice of Indemnitee as to the defense or
compromise of such actions and claims, and Indemnitee shall have the right to
participate, at its own expense, in such proceedings, but control of such
proceedings shall remain exclusively with Indemnitor. Indemnitee shall provide
all reasonable cooperation to Indemnitor in connection with such proceedings.
Counsel and auditor costs and expenses and court costs and fees of all
proceedings with respect to any such action or claim shall be borne by
Indemnitor. If any such claim is made hereunder and Indemnitor does not elect to
undertake the defense thereof by written notice to Indemnitee, Indemnitee shall
be entitled to control such proceedings and shall be entitled to indemnity with
respect thereto pursuant to the terms of this Section 7.3(b). To the extent that
Indemnitor undertakes the defense of such claim by written notice to Indemnitee
and diligently pursues such defense at its expense, Indemnitee shall be entitled
to indemnification hereunder only to the extent that such defense is
unsuccessful as determined by a final judgment of a court of competent
jurisdiction, or by written acknowledgment of the parties.
Section 7.4 Expenses. To the fullest extent permitted by applicable
law, expenses (including legal fees) incurred by a Covered Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Company prior to the final
14
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Company of an undertaking by or on behalf of the Covered Person to repay
such amount if it shall be determined that the Covered Person is not entitled to
be indemnified as authorized in Section 7.3 hereof.
Section 7.5 Insurance. The Company may purchase and maintain insurance,
to the extent and in such amounts as the Board of Directors shall, in its sole
discretion, deem reasonable, on behalf of Covered Persons and such other persons
as the Board of Directors shall determine, against any liability that may be
asserted against or expenses that may be incurred by any person in connection
with the activities of the Company or such indemnities, regardless of whether
the Company would have the power to indemnify such person against such liability
under the provisions of this Agreement. The Company may enter into indemnity
contracts with Covered Persons and such other Persons as the Board of Directors
shall determine and adopt written procedures pursuant to which arrangements are
made for the advancement of expenses and the funding of obligations under
Section 7.4 hereof and containing such other procedures regarding
indemnification as are appropriate.
ARTICLE VIII
TRANSFERS OF MEMBERSHIP INTERESTS
Section 8.1 Transfers of Membership Shares.
(a) Generally.
(i) Except as contemplated by Section 3.7 hereof, no Member or
Securityholder may, at any time, directly or indirectly, assign,
transfer, sell, exchange, syndicate, lien, encumber, pledge, or
hypothecate (collectively, a "Transfer") all or any portion of its
Membership Shares, or any direct or indirect beneficial or equity
interest therein, or in the Company (collectively, "Equity Interests")
to any Person without the prior written consent of the Managing Member,
which consent may be granted or withheld in the Managing Member's sole
discretion, for any reason or no reason; provided, however, that any
Member or Securityholder who is an individual may Transfer all or any
portion of such Equity Interest to any Permitted Transferee without
such prior approval.
(ii) Any individual Member or Securityholder making such
Transfer to a Permitted Transferee shall provide written notice thereof
to the Managing Member within ten (10) days of the applicable Transfer.
It is agreed that failure to provide such notice to the Managing Member
shall make the purported Transfer to the Permitted Transferee void ab
initio.
(iii) With respect to Transfers other than Permitted
Transfers, the Managing Member may condition its approval of any
proposed Transfer of Membership Shares upon its receipt from the Member
proposing to make such Transfer (the "Transferring Member") of a
written notice to the Managing Member (a "Transfer Notice") detailing
all of the material terms of such proposed Transfer, including the name
of proposed third party transferee or lender and the economic benefit
to be derived by the Transferring Member from such transaction.
15
(iv) If a Class B Member Transfers all or any portion of its
Membership Shares to a Permitted Transferee or with the consent of the
Managing Member as provided for above, the transferee may be admitted
to the Company as a Substitute Member in accordance with Section 3.8
hereof. If a Transfer of Membership Shares is made in accordance with
the provisions of this Section 8.1, the Managing Member shall amend
Schedule A hereto to record the admission of the Additional Member.
(b) Override on Transfers. Notwithstanding the fact that a Transfer may
be (or may have been effected) to a Permitted Transferee or may have been
approved by the Managing Member pursuant to this Section 8.1, no Transfer of
Membership Shares shall be permitted if such Transfer (i) violates any
applicable law, including federal or state securities laws or regulations, (ii)
causes the Company to be treated as a "publicly traded partnership" for tax
purposes or (iii) would constitute a Transfer of a Membership Share to a
Prohibited Owner, in which case any such purported Transfer shall be void ab
initio.
Section 8.2 Managing Member Right of First Refusal. In the event that a
Transferring Member is proposing to sell or assign all or any portion of its
Membership Shares to any Person, such Transferring Member shall deliver a
Transfer Notice to the Managing Member no later than thirty (30) days prior to
the contemplated closing of such sale or assignment. For a period of thirty (30)
days following receipt its receipt of such Transfer Notice, the Managing Member
may exercise a right to purchase all or a portion of the Membership Shares
described in such Transfer Notice on the same terms and conditions as set forth
therein. Managing Member's purchase right shall be exercised by written notice
signed by the Managing Member (the "Managing Member Notice") and delivered to
such Transferring Member. The Managing Member shall effect the purchase of the
Transferring Member's Membership Shares, including payment of the purchase
price, not more than thirty (30) days after delivery of the Managing Member
Notice, and at such time the Transferring Member shall sell to the Company the
Membership Shares free and clear of any liens or encumbrances and shall execute
such documentation as the Managing Member may reasonably propose in connection
with such sale. Upon the purchase by the Managing Member of Membership Shares
pursuant to this Section 8.2, such Membership Shares shall be owned for all
purposes by the Managing Member (who may make such acquired Membership Shares
available for issuance pursuant to Section 3.7 hereof) and the resulting
Percentage Interests of the remaining Members shall be amended accordingly.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 9.1 Dissolution.
(a) The Company shall dissolve, and its affairs shall be wound up, only
upon the written consent of the Managing Member.
(b) The Company shall not be dissolved by the admission of Additional
Members or Substitute Members in accordance with the terms of this Agreement.
16
Section 9.2 Liquidation. Upon dissolution of the Company, the Managing
Member shall carry out the winding up of the Company and shall immediately
commence to wind up the Company's affairs; provided, however, that (i) the
Managing Member shall have all of the powers set forth in Section 18-803(b) of
the Act during the period of the winding up of the Company's affairs and (ii) 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
Managing Member to minimize the normal losses attendant upon a liquidation. The
Members shall continue to share in profits and losses of the Company during
liquidation in the same proportions, as specified in Section 4.1 hereof, as
before liquidation, provided that allocations of profits, losses and items
thereof shall be made in a manner that results in the capital account balance
(as described in Treasury Regulation 1.704-1(b)) of each Member is equal to the
distribution to be made to such Member pursuant to Section 9.3(c). The proceeds
of liquidation shall be distributed in the following order and priority:
(a) first, to creditors of the Company, including Members who are
creditors, to the extent otherwise permitted by law, in satisfaction of the
liabilities of the Company (whether by payment or the making of reasonable
provision for payment thereof); and
(b) thereafter, to the Members, pro rata in proportion to their
respective Percentage Interests.
Section 9.3 Termination. The Company shall terminate when all of the
assets of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company, shall have been distributed to the
Members in the manner provided for in this Article IX and the certificate of
formation shall have been canceled in the manner required by the Act.
Section 9.4 Claims of the Members. Upon dissolution of the Company, the
Members shall look solely to the Company's assets for the return of their
capital contributions, and if the assets of the Company remaining after payment
of or due provision for all debts, liabilities and obligations of the Company
are insufficient to return such capital contributions, the Members shall have no
recourse against the Company or any other Member.
ARTICLE X
MISCELLANEOUS
Section 10.1 Separability of Provisions. Each provision of this
Agreement shall be considered separable and if for any reason any provision or
provisions herein are determined to be invalid, unenforceable or illegal under
any existing or future law, such invalidity, unenforceability or illegality
shall not impair the operation of or affect those portions of this Agreement
which are valid, enforceable and legal.
Section 10.2 Counterparts. This Agreement and any amendment or joinder
hereto may be executed in any number of counterparts and by facsimile, each of
which, when taken together, shall be deemed an original of this Agreement and
one and the same Agreement.
Section 10.3 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof,
and supersedes all prior understandings or agreements between the parties.
17
Section 10.4 Governing Law. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware (without regard to the
conflict of laws principles of such State).
Section 10.5 Arbitration.
(a) Any controversy, claim, or dispute arising out of or relating to
this Agreement, including any alleged breach or threatened breach of the
provisions contained in this Agreement, will, upon demand of a party to the
controversy, claim, or dispute, be resolved timely by arbitration held in New
York, New York, and administered by the American Arbitration Association ("AAA")
in accordance with the Commercial Arbitration Rules of the AAA and, to the
maximum extent applicable, pursuant to the Federal Arbitration Act, 9 U.S.C. 1
et seq.
(b) An award rendered in any such proceeding shall be final, binding,
and non-appealable, and judgment thereon may be entered in any court having
competent jurisdiction. With respect to a controversy, claim or dispute in which
the claim or amount in controversy does not exceed $100,000, a single arbitrator
will be impaneled, who will be chosen by the AAA and have authority to render a
maximum award of $100,000, including all damages of any kind and costs, fees,
interest and the like. With respect to a controversy, claim or dispute in which
the claim or amount in controversy exceeds $100,000, the dispute will be decided
by a majority vote of three arbitrators, each of whom shall be selected by the
AAA. All arbitrators will be knowledgeable in the subject matter of the dispute.
(c) The arbitrator(s) may grant any remedy or relief they deem just and
equitable, including any provisional and injunctive remedies available at law or
in equity (in which case the party receiving such relief may apply to the court
of competent jurisdiction for enforcement of such provisional or injunctive
order, without prejudice to the continued arbitration of the matter); provided,
however, that the AAA may, upon the demand of any party to the controversy,
claim, or dispute, administratively appoint a single "provisional relief"
arbitrator on an expedited basis to consider any request for, and grant, such
provisional or injunctive remedy; and, provided further, that the arbitrators
shall award reasonable attorneys' fees and expenses to the prevailing party. The
arbitrators will resolve all disputes in accordance with the laws of the State
of Delaware. The arbitrators will make specific, written findings of fact and
conclusions of law. The arbitrators' findings of fact will be binding on all
parties and will not be subject to further review.
Section 10.6 Remedies. The rights and remedies of the Company and of
the Members hereunder shall not be mutually exclusive, i.e., the exercise of one
or more of the provisions hereof shall not preclude the exercise of any other
provisions hereof. Except as otherwise provided for herein, it is expressly
understood and agreed by the Members that, notwithstanding any other remedies
which may be available at law or in equity to the Company, the Members or any of
their respective Affiliates, the remedies available to such Persons upon a
failure by any other such Person to perform any of its obligations hereunder, or
upon a breach of any agreement, covenant or representation hereunder, shall be
limited to those remedies which are expressly set forth in this Agreement, and
all remedies which are not set forth herein, whether
18
at law, equity or otherwise, are hereby waived by the Members in their own
capacities and on behalf of their Affiliates.
Section 10.7 No Third Party Beneficiaries. Nothing in this Agreement,
expressed or implied, is intended to confer any rights or remedies upon any
Person, other than the Members and, subject to the restrictions on assignment
contained herein, their respective successors and assigns.
Section 10.8 Amendments. This Agreement may be modified, altered,
supplemented or amended in any manner only with the approval of the Managing
Member. Any administrative alteration to Schedule A hereto (i.e., correcting a
spelling or typographical error or updating of a Member's address and contact
information or reflecting the admission of Additional Members or Substitute
Members following the issuance or Transfer of Membership Shares in accordance
with the terms of this Agreement) shall not be deemed an amendment to such
schedule or to this Agreement for purposes of this Section 10.8 and may be
effectuated by the Officers at the direction of the Board of Directors.
Section 10.9 Interpretation. Whenever appropriate in the context, terms
used in this Agreement in the singular also include the plural, and vice versa,
and each masculine, feminine or neuter pronoun shall also include the other
genders. Unless otherwise expressly stated herein, all references to the term
"including" shall be deemed to be interpreted as meaning "including, without
limitation". Unless otherwise expressly stated herein, all references to the
phrase "applicable law" shall be deemed to include provisions of rules and
regulations promulgated under applicable law. Except as otherwise expressly
provided herein, all references herein to any contract, agreement, law, rule,
regulation or other document shall refer to such contract, agreement, law, rule,
regulation or other document as amended from time to time.
Section 10.10 Captions. The captions of articles, sections and
schedules of this Agreement are for convenience only, and neither limit nor
amplify the provisions of the Agreement itself.
Section 10.11 Notices. All notices, demands, approvals, consents and
requests to be sent to the Company, or any Member pursuant to the terms hereof
shall be in writing and shall be deemed to have been properly given or served,
if personally delivered, sent by recognized messenger or next day courier
service, or sent by United States mail to the addresses listed on Schedule A
hereto, and will be deemed received, unless earlier received: (a) if sent by
express, certified or registered mail (and if by registered mail, with return
receipt requested), when actually received or delivery refused; (b) if sent by
messenger or courier, when actually received or refused, provided it is received
or refused on the same Business Day; (c) if delivered by hand, on the date of
delivery or refusal; and (d) if sent by first-class mail, seven (7) days after
it was mailed, unless returned to sender for any reason by the United Stated
Postal Service, but not at the request of the addressee. Rejection or other
refusal to accept or the inability to deliver because of changed address of
which no notice was given shall be deemed to be receipt of the notice, demand or
request sent.
19
ARTICLE XI
DEFINITIONS
Section 11.1 Certain Defined Terms. When used in this Agreement, the
following terms have the indicated meanings. All other capitalized terms are
defined elsewhere in this Agreement.
"Affiliate" or "Affiliates" of a specified Person is a Person or
Persons that (i) directly or indirectly, through one or more intermediaries,
Controls, is Controlled by or is under common Control with the Person specified,
or (ii) in the case of a natural person, is a spouse, natural brother or sister,
linear ancestor or linear descendant of any such specified person, or (iii) in
the case of a natural person, is a legal representative or trustee of any such
specified persons, or (iv) is an officer, director, trustee, employee,
shareholder, member, partner, principal or trust for the benefit of any entity
or Person referred to in the preceding clauses (i), (ii) or (iii); provided,
however, for the purposes of this Agreement, that no Member shall be deemed an
Affiliate of any other Member or any officer or agent of the Company solely by
virtue of the relationship of those parties to each other pursuant to this
Agreement.
"Available Net Cash" means, for any fiscal period, any operating
receipts of the Company (including the cash proceeds received by the Company in
connection with any Capital Event) after payment of (i) any amounts required to
pay costs and expenses of the Company, including normal operating expenses,
taxes and professional or other fees, (ii) any payments of any Indebtedness, and
(iii) amounts of any reserves as may reasonably be determined by the Board of
Directors. For purposes of this definition, the term "Indebtedness" means, with
respect to the Company, (a) all indebtedness for borrowed money, (b) the
deferred purchase price of assets or services which, in accordance with
generally accepted accounting principles, would be reflected as a liability, (c)
the maximum amount of all letters of credit issued for the account of the
Company, (d) all capitalized lease obligations, and (e) obligations to guarantee
the debt of another Person.
"Business Day" shall mean any day other than a Saturday, Sunday or any
day on which national banks in New York, New York are not open for business.
"Capital Event" means any event not occurring in the ordinary course of
business of the Company, pursuant to which the Company receives any
consideration with respect to its assets or the disposition thereof or of any
interest therein, and including, without limitation, any sale, financing,
refinancing, exchange, redemption, conversion or liquidation of all or any part
of the assets of the Company (including equity interests owned by the Company).
For the avoidance of doubt, the reorganization contemplated by Section 3.9
hereof shall not be deemed a Capital Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended, or
corresponding provisions of future laws.
"Control" shall mean the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person,
whether through (i) the
20
ownership of voting shares, (ii) general partnership or managing member
interests, (iii) common directors or trustees, or (iv) by contract or otherwise.
"Government Lists" shall mean (i) the Specially Designated Nationals
and Blocked Persons List maintained by the Office of Foreign Assets Control,
U.S. Department of the Treasury or (ii) any other list of terrorists, terrorist
organizations or narcotics traffickers maintained pursuant to any of the rules
and regulations of Office of Foreign Assets Control, U.S. Department of the
Treasury, or (iii) any similar list maintained by the U.S. Department of the
Treasury, U.S. Department of State, the U.S. Department of Commerce, any other
federal or state agency or pursuant to any Executive Order of the President of
the United States.
"Patriot Act Offense" means any violation of the criminal laws of the
United States of America or any of the several states, or that would be a
criminal violation if committed within the jurisdiction of the United States of
America or any of the several states, relating to terrorism or the laundering of
monetary instruments, including any offense under (a) the Bank Secrecy Act of
1970, (b) the Money Laundering Control Act of 1986, or (c) the Uniting and
Strengthening of America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, in each case as the same
may be amended from time to time, and the rules and regulations promulgated
thereunder and corresponding provisions of future laws. The term "Patriot Act
Offense" also includes the crimes of conspiracy to commit, or aiding and
abetting another to commit, a Patriot Act Offense.
"Permitted Transferee" means, as to any Member or Securityholder who is
a natural person, but in any event solely in the furtherance of such Member or
Securityholder's estate planning: (a) the spouse, brother, sister, lineal
ancestor or lineal descendent of such Member or Securityholder, (b) the legal
representative or trustee of such Member, Securityholder or any individual
specified in clause (a) of this definition, or (c) any partnership, limited
liability company, trust or other entity (i) organized solely for the sole
benefit of any individual specified in clause (a) of this definition or group of
such related individuals and (ii) controlled by such Member or Securityholder or
such Member or Securityholder's Permitted Transferee.
"Person" means any legal person, including any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, governmental entity or other entity
of similar nature.
A "Prohibited Owner" means a proposed Additional Member or Substitute
Member or other transferee or assignee of a Membership Share, or such Person's
direct or indirect shareholders, members, partners, controlling parties,
beneficiaries or other owners of interests in such transferee, to the extent
that any such Person is, are or has been (a) included on any Government List or
(b) a Person who has been determined by a Governmental Authority to be subject
to the prohibitions contained in Executive Order 13224 (September 23, 2001) or
any similar provisions contained in the rules and regulations of the Office of
Foreign Assets Control or (c) indicted for any Patriot Act Offense or (d) to the
actual knowledge of the Company or any Member or their respective Affiliates, at
the time of transfer or other transaction, as applicable, under investigation by
any federal, state, local or foreign governmental authority for alleged criminal
behavior or (e) a Person which, directly or indirectly, is engaged in the
business of drug or nutrient delivery or any other business which the Company is
engaged at the time of the proposed Transfer.
21
"Securityholder" means any Person holding a direct or indirect equity
interest in a Member.
"Treasury Regulations" means the income tax regulations promulgated
under the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
[signature page follows]
22
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Amended and Restated Limited Liability Operating
Agreement as of the date first set forth above.
BIODELIVERY SCIENCES INTERNATIONAL, INC.
/s/ Xxxxxxx X. X'Xxxxxxx, Xx.
By: __________________________________________
Name: Xxxxxxx X. X'Xxxxxxx, Xx., M.D.
Title: President and Chief Executive Officer
23
SCHEDULE A
Names, Contact Information and Membership Shares Held by the Members
--------------------------------------------------- ----------------------------------------------- ----------------------------
Name/Contact Information Number/Class of Membership Shares Percentage Interest
--------------------------------------------------- ----------------------------------------------- ----------------------------
BioDelivery Sciences International, Inc.
c/o UMDNJ - New Jersey Medical School
Administrative Building 4 708,586/Class A 94.972%
000 Xxxxx Xxxxxx Xxxxxx 7,085,862/Class B
Xxxxxx, Xxx Xxxxxx 00000
--------------------------------------------------- ----------------------------------------------- ----------------------------
Xxxxxxx Xxxxxxx
c/o UMDNJ - New Jersey Medical School
Administrative Building 4
000 Xxxxx Xxxxxx Xxxxxx 125,000/Class B 1.523%
Xxxxxx, Xxx Xxxxxx 00000
--------------------------------------------------- ----------------------------------------------- ----------------------------
Xxxxx Xxxxx-Fogerite
c/o UMDNJ - New Jersey Medical School
Administrative Building 4 75,000/Class B 0.914%
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
--------------------------------------------------- ----------------------------------------------- ----------------------------
Xxxxxx X. Xxxxxxxx
c/o Land Dynamics, Inc.
00000 Xxx Xxxxxx Xxxx
Xx. Xxxxx, XX 00000 75,000/Class B 0.914%
--------------------------------------------------- ----------------------------------------------- ----------------------------
Ellenoff Xxxxxxxx & Schole LLP
000 Xxxxxxxxx Xxxxx, 00xx Xxxxx 37,500/Class B 0.457%
Xxx Xxxx, XX 00000
--------------------------------------------------- ----------------------------------------------- ----------------------------
Xxxxx X. XxXxxxx
0000 X. Xxxxxxx Xxxxxx 20,000/Class B 0.244%
Xxxxx, XX 00000
--------------------------------------------------- ----------------------------------------------- ----------------------------
Xxxxx X. Xxxxxx
21 Sleepy Hollow Drive 20,000/Class B 0.244%
Xxxxxxxxxx, XX 00000
--------------------------------------------------- ----------------------------------------------- ----------------------------
Xxxxx Xxxx
Xxx Xxxxxxxxx 00 00,000/Xxxxx X 0.000%
00000 Xxxx Xxxxx
--------------------------------------------------- ----------------------------------------------- ----------------------------
Xxxxxxxxxxx Xxxxxxx
000 Xxxxx Xxxx Xxxxx 20,000/Class B 0.244%
Xxxxxxxxxxxxx, XX 00000
--------------------------------------------------- ----------------------------------------------- ----------------------------
Xxxxxx X. Xxxxxx
X.X. Xxx 0000 20,000/Class B 0.244%
Sarasota, Florida
--------------------------------------------------- ----------------------------------------------- ----------------------------
TOTAL 708,586 Class A/7,498,362 Class B 100%
--------------------------------------------------- ----------------------------------------------- ----------------------------
SCHEDULE B
BIORAL NUTRIENT DELIVERY, LLC
1. Purposes of the Plan. The purposes of the Bioral Nutrient Delivery,
LLC 2003 Class B Share Membership Option Plan are to attract and retain the best
available personnel for positions of substantial responsibility, to provide
additional incentive to Directors, Officers, Consultants and Employees of the
Company, and to promote the success of the Company's business. All Options
granted under the Plan are Non-Qualified Stock Options. This Plan is adopted by
the Managing Member as of January 8, 2003.
2. Definitions. As used herein, the following definitions shall apply.
All capitalized terms used but not defined herein shall have the meanings
ascribed such terms in that certain Limited Liability Company Operating
Agreement of the Company, dated January 8, 2003, by the parties signatory
thereto, as members of the Company (as the same may be amended and/or restated
from time to time, the "Operating Agreement").
"Applicable Laws" means the requirements relating to the administration
of stock or unit option plans under the laws of the State of Delaware, U.S.
federal and state securities laws, and the Code.
"BDSI" means BioDelivery Sciences International, Inc., a Delaware
corporation.
"Beneficial Owner" has the meaning set forth in Rule 13d-3 of the
Exchange Act.
"Board" means the Board of Directors of the Company.
"Change in Control" means (i) any Person becomes the Beneficial Owner,
directly indirectly of securities of the Company representing 51% or more of the
combined voting power of the Company's then outstanding securities; (ii) any
consolidation or merger of the Company with or into any other corporation or
other entity or person in which the members of the Company prior to such
consolidation or merger own less than fifty percent (51%) of the Company's
voting power immediately after such consolidation or merger, excluding any
consolidation or merger effected exclusively to change the domicile of the
Company; (iii) a sale of all or substantially all of the assets of the Company,
or (iv) a liquidation or dissolution of the Company.
"Class B Shares" means the Class B Membership Shares of the Company,
the holders of which have the rights afforded them under the Operating
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute or statutes thereto. Reference to any particular Code section
shall include any successor section.
"Company" means Bioral Nutrient Delivery, LLC , a Delaware limited
liability company.
"Director" means a Director of the Company.
1
"Employee" means any person, including a Officer who is an employee (as
defined in accordance with Section 3401(c) of the Code) of the Company. An
Employee shall not cease to be an Employee in the case of any leave of absence
approved by the Company.
"Fair Market Value" means, as of any date, the value of a Class B Share
as determined in good faith by the Board.
"Holder" means a person who has been granted or awarded an Option or
who holds Class B Shares acquired pursuant to the exercise of an Option.
"Non-Qualified Stock Option" means a stock option that does not qualify
as an "incentive stock option" within the meaning of Section 422 of the Code.
"Option" means an option granted, pursuant to the Plan, to purchase
Class B Shares.
"Option Agreement" means a written agreement between the Company and a
Holder evidencing the terms and conditions of an individual Option grant. The
Option Agreement is subject to the terms and conditions of the Plan.
"Parent" means any entity which owns securities possessing 50 percent
or more of the total combined voting or approval power of all classes of
securities in the Company.
"Person" has the meaning given under Exchange Act Section 13(d), and
shall include a "group," as defined in Rule 13d-5 promulgated thereunder.
However, a "person" shall not include: (i) the Company or its Parent or
Subsidiaries; (ii) a trustee or other fiduciary holding securities under this
Plan or any employee benefit plan of the Company, its Parent or Subsidiaries; or
(iii) BDSI or any entity which is controlled by BDSI or is under common control
with BDSI.
"Plan" means this Bioral Nutrient Delivery, LLC 2003 Class B Share
Option Plan.
"Subsidiary" means any entity in which the Company owns securities
possessing 50 percent or more of the total combined voting power of all classes
of securities in such entity.
3. Class B Shares Subject To The Plan. Subject to the provisions of Section 12
of the Plan, the maximum aggregate number of Class B Shares which may be issued
upon exercise of Options is 1,000,000 Class B Shares. If an Option is cancelled,
expires or becomes unexercisable without having been exercised in full, the
unpurchased Class B Shares which were subject thereto shall become available for
future grant or sale under the Plan (unless the Plan has terminated). Class B
Shares which are delivered by the Holder or withheld by the Company upon the
exercise of an Option under the Plan, in payment of the exercise price thereof
or tax withholding thereon, may again be optioned, granted or awarded hereunder,
subject to the limitations of this Section 3.
4. Administration of the Plan.
(a) Administration By the Board. The Plan shall be administered by the
Board in accordance with the provision of this Plan.
2
(b) Powers of the Board. Subject to the provisions of this Plan and the
approval of any relevant authorities, the Board shall have the authority in its
sole discretion:
(i) to determine the Fair Market Value;
(ii) to select the Employees to whom Options may from time to
time be granted hereunder;
(iii) to determine the number of Class B Shares to be covered
by each such award granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions of any Option
granted hereunder (such terms and conditions include, but are not
limited to, the exercise price, the time or times when Options may vest
or be exercised (which may be based on performance criteria), any
vesting acceleration or waiver of forfeiture restrictions, and any
restriction or limitation regarding any Option or Class B Share
relating thereto, based in each case on such factors as the Board, in
its sole discretion, shall determine);
(vi) to determine whether to offer to buyout a previously
granted Option as provided in Section 10(g) hereof and to determine the
terms and conditions of such offer and buyout (including whether
payment is to be made in cash or Class B Shares);
(vii) to prescribe, amend and rescind rules and regulations
relating to the Plan;
(viii) to allow Holders to satisfy withholding tax obligations
by electing to have the Company withhold from the Class B Shares to be
issued upon exercise of an Option that number of Class B Shares having
a Fair Market Value equal to the minimum amount required to be withheld
based on the statutory withholding rates for federal and state tax
purposes that apply to supplemental taxable income. The Fair Market
Value of the Class B Shares to be withheld shall be determined on the
date that the amount of tax to be withheld is to be determined. All
elections by Holders to have Class B Shares withheld for this purpose
shall be made in such form and under such conditions as the Board may
deem necessary or advisable;
(ix) to amend the Plan or any Option granted under the Plan as
provided in Section 14; and
(x) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan and to exercise such powers and perform
such acts as the Board deems necessary or desirable to promote the best
interests of the Company which are not in conflict with the provisions
of the Plan.
3
(c) Effect of Board Decision. All decisions, determinations and
interpretations of the Board shall be final and binding on all Holders.
5. Eligibility. Options may be granted only to Directors, Officers,
Employees and Consultants. If otherwise eligible, a Director, Officer, Employee
or Consultant who has been granted an Option may be granted additional Options.
6. Limitations. Neither the Plan nor any Option shall confer upon a
Holder any right with respect to continuing the Holder's status as a Director or
the Holder's employment or consulting relationship with the Company, nor shall
they interfere in any way with the Holder's right or the Company's right to
terminate such directorship, employment or consulting relationship at any time,
with or without cause.
7. Term of Plan. The Plan shall become effective upon its initial
adoption by the Board and shall continue in effect until it is terminated under
Section 14 hereof. No Options may be issued under the Plan after the tenth
(10th) anniversary of the date first listed above in this Plan.
8. Term of Option. The term of each Option shall be stated in the
applicable Option Agreement; provided, however, that the term shall be no more
than ten (10) years from the date of grant thereof.
9. Option Exercise Price and Consideration.
(a) Except as provided in Section 12, the exercise price per Class B
Share for the Class B Shares to be issued upon exercise of an Option shall be
such price as is determined by the Board.
(b) The consideration to be paid for the Class B Shares to be issued
upon exercise of an Option, including the method of payment, shall be determined
by the Board. Such consideration may consist of (i) cash or (ii) check.
10. Exercise of Option.
(a) Vesting; Fractional Exercises. Except as provided in Section 12, an
Option granted hereunder shall become vested and exercisable at the rate
specified in the Option Agreement. In the absence of a specified rate in the
Option Agreement, the Option shall become vested and exercisable at a rate of
fifty percent (50%) per year over two (2) years from the date the Option is
granted, subject to the condition that the Holder continue to be a Director,
Officer, Consultant or an Employee. An Option may not be exercised for a
fraction of a Class B Share.
(b) Deliveries upon Exercise. All or a portion of an exercisable Option
shall be deemed exercised upon delivery of all of the following to the Secretary
of the Company or his or her office:
(i) A written or electronic notice complying with the
applicable rules established by the Board stating that the Option, or a
portion thereof, is exercised.
4
The notice shall be signed by the Holder or other person then entitled
to exercise the Option or such portion of the Option;
(ii) Such representations and documents as the Board, in its
sole discretion, deems necessary or advisable to effect compliance with
Applicable Laws. The Board may, in its sole discretion, also take
whatever additional actions it deems appropriate to effect such
compliance, including, without limitation, placing legends on Class B
Share certificates and issuing stop transfer notices to agents and
registrars;
(iii) In the event that the Option shall be exercised
pursuant to Section 10(f) by any person or persons other than the
Holder, appropriate proof of the right of such person or persons to
exercise the Option; and
(c) Conditions to Delivery of Evidence of Ownership. The Company shall
not be required to issue or deliver any certificate or certificates (or other
evidence of ownership, including an amended Schedule A to the Operating
Agreement, certified by the Managing Member as to the number of Shares held by
each Member) for Class B Shares purchased upon the exercise of any Option or
portion thereof prior to fulfillment of all of the following conditions:
(i) The completion of any registration or other qualification
of such Class B Shares under any state or federal law, or under the
rulings or regulations of the Securities and Exchange Commission or any
other governmental regulatory body which the Board shall, in its sole
discretion, deem necessary or advisable;
(ii) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Board shall, in its sole
discretion, determine to be necessary or advisable;
(iii) The lapse of such reasonable period of time following
the exercise of the Option as the Board may establish from time to time
for reasons of administrative convenience;
(iv) The receipt by the Company of full payment for such Class
B Shares, including payment of any applicable withholding tax, which in
the sole discretion of the Board may be in the form of consideration
used by the Holder to pay for such Class B Shares under Section 9(b);
and
(v) The Holder's execution of a Joinder Agreement or similar
instrument (the form of which shall be determined by the Board) whereby
the Holder agrees to the terms and conditions of the Operating
Agreement.
(d) Termination of Relationship as a Service Provider. If a Holder
ceases to be a Director, Officer, Employee or Consultant other than by reason of
the Holder's disability or death, such Holder may exercise his or her Option
within such period of time as is specified in the Option Agreement to the extent
that the Option is vested on the date of termination. In the absence of a
specified time in the Option Agreement, the Option shall remain exercisable for
5
three (3) months following the Holder's termination. If, on the date of
termination, the Holder is not vested as to his or her entire Option, the Class
B Shares covered by the unvested portion of the Option immediately cease to be
issuable under the Option and shall again become available for issuance under
the Plan. If, after termination, the Holder does not exercise his or her Option
within the time period specified herein, the Option shall terminate, and the
Class B Shares covered by such Option shall again become available for issuance
under the Plan.
(e) Disability of Holder. If a Holder ceases to be a Director, Officer,
Employee or Consultant as a result of the Holder's disability, as such term is
defined in Section 22(e)(3) of the Code, or, in the case of a Consultant which
is an entity, the bankruptcy or dissolution of such Consultant, the Holder may
exercise his or her Option within such period of time as is specified in the
Option Agreement to the extent the Option is vested on the date of termination.
In the absence of a specified time in the Option Agreement, the Option shall
remain exercisable for three (3) years following the occurrence of the Holder's
disability, bankruptcy or dissolution, as the case may be. If, on the date of
disability, bankruptcy or dissolution, the Holder is not vested as to his or her
entire Option, the Class B Shares covered by the unvested portion of the Option
shall immediately cease to be issuable under the Option and shall again become
available for issuance under the Plan. If, after disability, bankruptcy or
dissolution, the Holder does not exercise his or her Option within the time
specified herein, the Option shall terminate, and the Class B Shares covered by
such Option shall again become available for issuance under the Plan.
(f) Death of Holder. If a Holder dies while still acting as a Director,
Officer, Employee or Consultant, the Option may be exercised within such period
of time as is specified in the Option Agreement, by the Holder's estate or by a
person who acquires the right to exercise the Option by bequest or inheritance,
but only to the extent that the Option is vested on the date of death. In the
absence of a specified time in the Option Agreement, the Option shall remain
exercisable for three (3) years following the Holder's death. If, at the time of
death, the Holder is not vested as to his or her entire Option, the Class B
Shares covered by the unvested portion of the Option shall immediately cease to
be issuable under the Option and shall again become available for issuance under
the Plan. The Option may be exercised by the executor or Board of the Holder's
estate or, if none, by the person(s) entitled to exercise the Option under the
Holder's will or the laws of descent or distribution. If the Option is not so
exercised within the time specified herein, the Option shall terminate, and the
Class B Shares covered by such Option shall again become available for issuance
under the Plan.
(g) Buyout Provisions. The Board may at any time offer to buyout for a
payment in cash or Class B Shares, an Option previously granted, based on such
terms and conditions as the Board shall establish and communicate to the Holder
at the time that such offer is made.
11. Non-Transferability of Options. Except as otherwise provided in
this Section 11, Options may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the Holder,
only by the Holder. A Holder may transfer an Option to a partnership or trust
solely benefiting the holder or immediate family members, or to an inter vivos
or testamentary trust from which the option or underlying class b shares will be
transferred after the holder's death.
6
12. Adjustments Upon Changes In Capitalization, Merger or Asset Sale.
(a) In the event that the Board determines that any distribution
(whether in the form of cash, Class B Shares, other securities or other
property), recapitalization, reclassification, Membership Share split, reverse
Membership Share split, reorganization, merger, consolidation, split-up,
spin-off, combination, repurchase, liquidation, dissolution, or sale, transfer,
exchange or other disposition of all or substantially all of the assets of the
Company, or exchange of Membership Shares or other securities of the Company,
issuance of warrants or other rights to purchase Class B Shares or other
securities of the Company, or other similar corporate transaction or event, in
the Board's sole discretion, affects the Class B Shares such that an adjustment
is determined by the Board to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended by the Company to be
made available under the Plan or with respect to any Option, then the Board
shall, in such manner as it may deem equitable, adjust any or all of:
(i) the number and kind of Class B Shares (or other securities
or property) with respect to which Options Class B Shares may be
granted or awarded (including, but not limited to, adjustments of the
limitations in Section 3 on the maximum number and kind of Class B
Shares which may be issued and adjustments of the maximum number of
Class B Shares that may be purchased by any Holder pursuant to Section
6(b));
(ii) the number and kind of shares of Class B Shares (or other
securities or property) subject to outstanding Options; and
(iii) the exercise price with respect to any Option.
(b) In the event of a Change in Control, all Options shall become fully
vested and exercisable.
13. Time of Granting Options. The date of grant of an Option shall, for
all purposes, be the date on which the Board makes the determination granting
such Option, or such other date as is determined by the Board. Notice of the
determination shall be given to each Director or Employee to whom an Option is
so granted within a reasonable time after the date of such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time wholly or
partially amend, alter, suspend or terminate the Plan.
(b) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Holder,
unless mutually agreed otherwise between the Holder and the Board, which
agreement must be in writing and signed by the Holder and the Company.
Termination of the Plan shall not affect the Board's ability to exercise the
powers granted to it hereunder with respect to Options granted or awarded under
the Plan prior to the date of such termination.
7
15. Inability to Obtain Authority. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Class B Shares hereunder, shall relieve the Company of any liability
in respect of the failure to issue or sell such Class B Shares as to which such
requisite authority shall not have been obtained.
16. Right to Issue of Class B Shares. The Board, during the term of
this Plan, shall at all times maintain the right to issue such number of Class B
Shares as shall be sufficient to satisfy the requirements of the Plan.
17. Investment Intent. The Board may require a Holder, as a condition
of exercising any Option, (i) to give written assurances satisfactory to the
Board as to the Holder's knowledge and experience in financial and business
matters and/or to employ a purchaser representative reasonably satisfactory to
the company who is knowledgeable and experienced in financial and business
matters and that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising the Option, (ii) to
give written assurances satisfactory to the Board stating that the Holder is
acquiring the Class B Shares subject to the Option for the Holder's own account
and not with any present intention of selling or otherwise distributing the
Class B Shares and (iii) that the Class B Shares are subject to the restrictions
of transfer contained in the Operating Agreement. The foregoing requirements,
and any assurances given pursuant to such requirements, shall be inoperative if
as to any particular requirement, a determination is made by counsel for the
company that such requirement need not be met in the circumstances under the
then applicable securities laws.
18. Governing Law. The validity and enforceability of this Plan shall
be governed by and construed in accordance with the laws of the State of
Delaware (including the Limited Liability Company Act of the State of Delaware
(6 Del. C.ss.18-101, et seq.), as amended from time to time), without regard to
otherwise governing principles of conflicts of law.
8
IN WITNESS WHEREOF, the undersigned Managing Member of the Company
certifies that the foregoing sets forth the Bioral Nutriment Delivery, LLC 2003
Incentive Plan as duly adopted by the Managing Member on January 8, 2003.
BIODELIVERY SCIENCES INTERNATIONAL, INC.
By: __________________________________
Name: Xxxxxxx X. X'Xxxxxxx, Xx.
Title: President and Chief Executive Officer
9
