Exhibit 99.5
FIRST AMENDMENT
OF
LIMITED LIABILITY COMPANY AGREEMENT
OF
MESO SCALE DIAGNOSTICS, LLC.
THIS FIRST AMENDMENT OF LIMITED LIABILITY COMPANY AGREEMENT
(this "Amendment") of MESO SCALE DIAGNOSTICS, LLC. (the "Company") is entered
into as of August 15, 2001, by and between IGEN International, Inc., a Delaware
corporation (formerly IGEN, Inc., a California corporation) ("IGEN", which
refers to IGEN, Inc. prior to the date on which IGEN International, Inc.
succeeded to the membership interest of IGEN, Inc. in the Company and to IGEN
International, Inc. as of and after such date), and Meso Scale Technologies,
LLC., a Delaware limited liability company ("MST" and together with IGEN, the
"Members");
WHEREAS, IGEN, Inc., as the predecessor in interest to all of
the interest of IGEN in the Company, and MST are parties to a certain Limited
Liability Company Agreement, dated as of November 30, 1995 (the "Agreement"),
pursuant to which they have organized a limited liability company under the
provisions of the Delaware Limited Liability Company Act under the name Meso
Scale Diagnostics, LLC. for the purposes set forth in the Agreement and subject
to the terms and conditions thereof;
WHEREAS, the Company, MST and IGEN entered into a Joint
Venture Agreement, dated as of November 30, 1995, as amended (the "Joint Venture
Agreement"), for the purpose of setting forth their respective rights and
obligations with respect to certain research and development activities and, if
successful, the development, manufacturing, marketing and sale of the products,
processes and services based thereon;
WHEREAS, the Company, MST and IGEN are amending the Joint
Venture Agreement concurrently with the execution and delivery of this Amendment
and are executing and delivering various other agreements in connection with the
execution and delivery of this Amendment and the amendment to the Joint Venture
Agreement; and
WHEREAS, MST and IGEN desire to amend the Agreement to reflect
amendments to the Joint Venture Agreement and to make certain other changes, all
as herein set forth;
NOW, THEREFORE, in consideration of the foregoing, and of the
covenants and agreements hereinafter set forth, the Members agree and amend the
Agreement as follows:
1. AMENDMENT OF CERTAIN DEFINITIONS
1.1 Definitions
The definition of "Annual Financial Statements" contained in
Section 13.6 of the Agreement is hereby amended and restated as follows:
"13.6 "Annual Financial Statements" shall have the meaning
---------------------------
set forth in the Joint Venture Agreement."
The definition of "Board of Managers" contained in Section
13.8 of the Agreement is hereby amended and restated as follows:
"13.8 "Board of Managers" shall mean the persons specified
-----------------
in Section 5.1.2 hereof or appointed by the Members in
accordance with the procedures specified therein to manage
the business and affairs of the Company in accordance with the
terms of this Agreement."
The definition of "Class C Capital Contribution" contained in
Section 13.13a of the Agreement is hereby amended and restated as follows:
"13.13a "Class C Capital Contribution" shall mean any Capital
----------------------------
Contribution made by IGEN pursuant to Section 3.1.5 and
designated as a Class C capital contribution in accordance
with the Joint Venture Agreement."
The definition of "Percentage Interest" contained in Section
13.26 of the Agreement is hereby amended and restated as follows:
"13.26 "Percentage Interest" means the percentage for each
-------------------
Class A Member as determined pursuant to Section 3.1.3."
The definition of "Preferred Return" contained in Section
13.27 of the Agreement is hereby amended and restated as follows:
"13.27 "Preferred Return" shall mean with respect to each
----------------
Class C Member's Class C Capital Contribution for each Fiscal
Year or part thereof, (i) for the period from and after
November 30, 1995 through December 31, 2000, an annual return
equal to five percent (5%) per annum (cumulated not
compounded) on the amount of such Member's
2
Adjusted Cumulative Class C Capital Contribution taking into
account any additions to or reductions in such Adjusted
Cumulative Class C Capital Contributions (which the parties
expressly acknowledge and confirm shall not include any
Preferred Return that is payable pursuant to this subsection
(i)) during the period for which the calculation is made, and
(ii) for the period from and after January 1, 2001, an annual
return equal to the Prime Rate from time to time in effect
plus one-half of one percent (0.5%) (cumulated not compounded)
on the amount of such Member's Adjusted Cumulative Class C
Capital Contribution taking into account any additions to or
reductions in such Adjusted Cumulative Class C Capital
Contributions (which the parties expressly acknowledge and
confirm shall not include any Preferred Return that is payable
pursuant to subsection (i) above or this subsection (ii))
during the period for which the calculation is made. As used
herein, the term "Prime Rate" shall mean the rate of interest
publicly announced by The Wall Street Journal (or, if The Wall
Street Journal no longer publishes such information, a
comparable publication) on the first day of each calendar
quarter (or if no such announcement is made on such date, then
on the day nearest preceding such date). For purposes hereof,
the Company shall determine the Prime Rate on the first day of
each calendar quarter and the Preferred Return payable
hereunder shall remain unchanged throughout such calendar
quarter."
The definition of "Transfer" contained in Section 13.31 of the
Agreement is hereby amended and restated as follows:
"13.31 "Transfer" has the meaning given to it in Section
--------
8.1.1."
The Agreement is hereby amended to add the following
definition:
"13.32 "MSD" means the limited liability company formed
---
pursuant to this Agreement."
Unless the context otherwise specifies or requires,
capitalized terms used in this Amendment which are not otherwise defined in the
text of this Amendment shall have the meanings assigned to them in the
Agreement, as amended by this Amendment. Unless otherwise specified, all
references in this Amendment to Sections or Subsections are to Sections or
Subsections of the Agreement, as amended by this Amendment.
2. CAPITAL CONTRIBUTIONS; DISTRIBUTIONS
Section 3.1.2 of the Agreement is hereby amended and restated
as follows:
3
"3.1.2 IGEN Financing. IGEN shall make capital contributions
--------------
to the Company from time to time in accordance with the Joint
Venture Agreement. IGEN and the Company shall determine the
amount of IGEN's capital contributions to be treated as either
the "Initial IGEN Capital Contribution" or "Class C Capital
Contributions" in accordance with the Joint Venture Agreement,
provided, however, that the total amount of the Initial IGEN
-------- -------
Capital Contribution shall not exceed $3,100,000. The parties
agree that the funding of the Initial IGEN Capital
Contribution was completed as of December 31, 2000. The
Initial IGEN Capital Contribution has been divided into the
Initial IGEN Class A Capital Contribution and the Initial IGEN
Class B Capital Contribution in accordance with Section
3.1.3."
Section 3.1.3 of the Agreement is hereby amended and restated
as follows:
"3.1.3 Allocation of Initial IGEN Capital Contribution. For
-----------------------------------------------
each $500 of the Initial IGEN Capital Contribution
contributed, $1.00 has been credited to IGEN's Class A Capital
Account (the "Initial IGEN Class A Capital Contribution") and
$499.00 has been credited to IGEN's Class B Capital Account
(the "Initial IGEN Class B Capital Contribution"). As of any
date, but subject to adjustment in accordance with Section
10.14. of the Joint Venture Agreement, IGEN's Class A
membership interest shall be the quotient, expressed as a
percentage, obtained by dividing the amount of the Initial
IGEN Class A Capital Contribution credited to IGEN's Class A
Capital Account as of such date by 20,000, and MST's Class A
membership interest as of any date shall be the difference
between such quotient, expressed as a percentage, and 100
percent (each, a "Percentage Interest"). As a result of the
contribution to MSD of all of the Initial IGEN Capital
Contribution through December 31, 2000, as of such date and as
of the date of the execution and delivery of the First
Amendment of Limited Liability Company Agreement of Meso Scale
Diagnostics, LLC., the Percentage Interest of IGEN was
Thirty-One Percent (31%) and the Percentage Interest of MST
was Sixty-Nine Percent (69%).
Section 4.3.1(d) of the Agreement is hereby amended and
restated as follows:
"(d) Fourth, to all Class A Members, pro rata in proportion
to their Percentage Interests."
4
3. REPORTS
The text of Section 7.4 of the Agreement is deleted and the
following is substituted therefore:
"[Provision Intentionally Omitted]"
4. MISCELLANEOUS AMENDMENTS
4.1 Amendment of Section 2.7
Section 2.7 of the Agreement is hereby amended and restated as
follows:
"2.7 Members' Names and Addresses. The name and business
----------------------------
address of each of the Members are as follows:
MESO SCALE TECHNOLOGIES, LLC
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IGEN INTERNATIONAL, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇"
4.2 Deletion of Section 2.9
The text of Section 2.9 of the Agreement is hereby deleted and
the following is substituted therefore:
"[Provision Intentionally Omitted]"
4.3 Section 4.7
Section 4.7 of the Agreement is hereby amended by deleting the
phrase ", and such allocation".
4.4 Section 5.1
5
Section 5.1 of the Agreement is hereby amended by adding at
the end of the second sentence thereof the following:
"and reflected in the minute books of the Company".
4.5 Section 5.1.1
The second sentence of Section 5.1.1 of the Agreement is
hereby amended and restated as follows:
"Each of MST and IGEN shall have the right to appoint one
member of the Board of Managers so long as it retains any of
its Interest as a Class A Member of the Company. IGEN shall be
entitled to rely on the authority of the member of the Board
of Managers appointed by MST with respect to all decisions
made and actions taken by such member on behalf of MST
pursuant to this Agreement without any obligation to perform
any further inquiry thereof, and MST shall be entitled to rely
on the authority of the member of the Board of Managers
appointed by IGEN with respect to all decisions made and
actions taken on behalf of IGEN pursuant to this Agreement
without any obligation to perform any further inquiry
thereof."
4.6 Section 5.1.7
Section 5.1.7 of the Agreement is hereby amended by adding at
the end of such section the following:
"Notwithstanding any applicable provision of this Agreement or
the Joint Venture Agreement, and unless and until either
clause (i) or (ii) of this Section 5.1.7 becomes applicable,
the foregoing sentences of this Section 5.1.7, upon the
occurrence of any event giving rise to a right to terminate
the Joint Venture Agreement under Section 8.4 thereof, Board
Members entitled to cast a majority of the votes that Board
Members are then entitled to cast shall constitute a quorum of
the Board of Managers, shall be entitled and authorized to
hold a meeting of the Board of Managers, and shall be
authorized to take action at any meeting of the Board of
Managers unless and until either (i) MSD and/or MST fail to
deliver to IGEN a Valuation Election Notice (as defined in the
Joint Venture Agreement) prior to the expiration of the time
period for delivery of such notice specified in Section
8.5.3.(a) of the Joint Venture Agreement with respect to the
event which gave rise to such right to terminate, or (ii) MSD
and/or MST timely deliver to IGEN a Valuation Election Notice
but fail to deliver to IGEN a Purchase Election Notice (as
defined in the Joint Venture Agreement) prior to the
expiration of the time period for delivery of such notice
6
specified in Section 8.5.3.(b) of the Joint Venture Agreement
with respect to the event which gave rise to such right to
terminate."
4.7 Section 5.1.8
Section 5.1.8 of the Agreement is hereby amended by adding at
the end of such section the following:
"Each Board Member shall be entitled to cast one vote with
respect to any matters to be voted on or decided by the Board
of Managers; provided, however, that upon the occurrence of
any event giving rise to a right to terminate the Joint
Venture Agreement under Section 8.4 thereof then,
notwithstanding any applicable provision of this Agreement or
the Joint Venture Agreement, and unless and until either
clause (i) or (ii) of this Section 5.1.8 becomes applicable,
all votes and decisions of the Board of Managers shall be
determined by majority vote based on the Percentage Interests
of the Class A Members, with the representative to the Board
of Managers appointed by IGEN entitled to cast a percentage of
the votes equal to IGEN's Percentage Interest at the time and
the representative to the Board of Managers appointed by MST
entitled to cast a percentage of the votes equal to MST's
Percentage Interest at the time, unless and until either (i)
MSD and/or MST fail to deliver to IGEN a Valuation Election
Notice prior to the expiration of the time period for delivery
of such notice specified in Section 8.5.3.(a) of the Joint
Venture Agreement with respect to the event which gave rise to
such right to terminate, or (ii) MSD and/or MST timely deliver
to IGEN a Valuation Election Notice but fail to deliver to
IGEN a Purchase Election Notice prior to the expiration of the
time period for delivery of such notice specified in Section
8.5.3.(b) of the Joint Venture Agreement with respect to the
event which gave rise to such right to terminate."
4.8 Section 5.1.11
The reference in the second sentence of Section 5.1.11(a) of
the Agreement to Section 5.1.10 is hereby amended to refer to Section 5.1.11.
4.9 Section 5.2
The last sentence in Section 5.2 of the Agreement is hereby
amended and restated as follows:
"Subject to the provisions of this Agreement which require the
unanimous consent or approval of the Class A Members,
including without limitation Section 5.3, the power and
authority granted to the
7
Board of Managers hereunder shall consist of all those
necessary or convenient for the furtherance of the purposes of
the Company (consistent with other provisions of this
Agreement and the Joint Venture Agreement), as well as the
power and authority to undertake and make decisions concerning
(a) entering into leases for real or personal property to the
extent inconsistent with the then current budget approved
pursuant to Section 2.8. of the Joint Venture Agreement; (b)
purchasing, constructing, improving and developing real
property to the extent inconsistent with the then current
budget approved pursuant to Section 2.8. of the Joint Venture
Agreement; (c) giving guarantees and indemnities; (d) entering
into contracts or agreements (including, without limitation,
contracts or agreements relating to the borrowing of money) to
the extent inconsistent with the then current budget approved
pursuant to Section 2.8. of the Joint Venture Agreement and in
excess of $100,000; (e) issuing securities, equity or other
interests of or in the Company; (f) mergers with or
acquisitions of other entities; (g) dissolution; (h) the sale
or lease of all or substantially all of the assets of the
Company; (i) forming subsidiaries or joint ventures; (j)
compromising, arbitrating, adjusting, and litigating claims in
favor of or against the Company other than in the ordinary
course of business; and (k) the making of investments in or
the acquisition of securities of any person or entity (to the
extent not otherwise contemplated by the grant to the Board of
Managers pursuant to Section 3.1 of the Joint Venture
Agreement of the responsibility for the management of the
Company's available funds).
4.10 Section 5.3.3
Section 5.3.3 of the Agreement is hereby amended by adding at
the end of such section the following:
", except as provided for in Sections 2.4.3(c), 8. and 10.14
of the Joint Venture Agreement".
4.11 Section 5.3.4
Section 5.3.4 of the Agreement is hereby amended by adding at
the end of such section the following:
", except as provided for in Sections 2.4.3(c), 8. and 10.14
of the Joint Venture Agreement".
4.12 Section 5.4.2
8
Section 5.4.2 is hereby amended by modifying the proviso to
read as follows:
"; provided, however, that without the unanimous vote or
resolution of the Board of Managers, no such officer shall
have the power to undertake any of the acts or activities
referred to in the last sentence of Section 5.2 hereof".
4.13 Section 5.4.6
Section 5.4.6 is hereby amended and restated as follows:
"The President shall be the chief executive officer and shall
have overall executive responsibility and general authority
for management of and shall have general charge, supervision
and control of the business, affairs, operations and property
of the Company, subject to the supervision and oversight of
the Board of Managers. Without limiting the foregoing, the
President shall have the authority to execute and implement
each budget that has been approved in accordance with Section
2.8 of the Joint Venture Agreement. The President also may
sign or execute, in the name and on behalf of the Company, all
deeds, mortgages, bonds, agreements, patent, trademark,
copyright and domain name applications and any documents
related to the prosecution and maintenance of such
intellectual property rights, or other undertakings or
instruments, except in cases where the signing or execution
thereof shall have been expressly delegated by the Board of
Managers to some other officer or agent of the Company. The
President shall have and may exercise such additional powers
and perform such additional duties as may be provided by law
or as are incident to the office of president and chief
executive officer of a business enterprise or as are
customarily performed by persons holding such offices and such
other duties as are assigned by this Agreement and as may from
time to time be assigned by the Board of Managers.
Unless the Board of Managers otherwise specifies, the
President (provided the President is a member of the Board of
Managers) shall preside, or designate the person who shall
preside, at all meetings of Members and of the Board of
Managers.
Any Vice Presidents shall have duties as shall be designated
from time to time by the Board of Managers or the President.
9
Subject to Section 5.4.2, this Section 5.4.6 shall be given
effect notwithstanding any other provision of this Agreement
or the Joint Venture Agreement to the contrary."
4.14 Section 5.4.8
Section 5.4.8 is hereby amended by deleting the word
"designed" in the second sentence thereof and replacing it with the word
"designated".
4.15 Section 10.1
Section 10.1 of the Agreement is hereby amended by deleting
the phrase "Act." at the end of Section 10.1.7 and replacing it with the
following:
"Act;
provided, however, that the Company shall not be dissolved,
and its business shall be continued, upon the occurrence of a
Dissolution Event described in Section 10.1.1 if the other
Member thereafter consents in writing to the continuation of
the Company."
4.16 Section 11.3
Section 11.3 of the Agreement is hereby amended by deleting
the phrase "made in accordance with Section 2.4.2 of" from the third sentence
thereof and replacing it with the phrase "to the extent provided in".
4.17 Section 12.1
Section 12.1 is hereby amended and restated as follows:
"12.1 Amendments. Notwithstanding any other provision of this
----------
Agreement or the Joint Venture Agreement, and in addition to
any amendments otherwise authorized herein, amendments may be
made to this Agreement from time to time by a writing duly
executed by all of the Members; provided, however, upon the
occurrence of one or more of the events set forth in Section
8.4. of the Joint Venture Agreement giving rise either to
MST's and/or MSD's right to terminate the Joint Venture
Agreement and the delivery of a Purchase Election Notice under
Section 8.5.3.(b) of the Joint Venture Agreement, amendments
may be made to this Agreement from time to time by a writing
duly executed by Class A Members representing a majority of
the Percentage Interests."
10
4.18 Section 12.3
Section 12.3 of the Agreement is hereby amended by deleting
the phrase "made in accordance with Section 2.4.2 of" from the last sentence
thereof and replacing it with the phrase "to the extent provided in".
4.19 New Section 12.9
Article 12 is hereby amended by inserting the following as a
new Section 12.9:
"Section 12.9 Approvals. Notwithstanding any other provision
---------
to the contrary contained herein, IGEN hereby agrees that, in
its capacity as a Member of the Company and as a party to this
Agreement and acting through its designee on the Board of
Managers (i.e., the IGEN Manager (as defined in the Joint
Venture Agreement)), IGEN, directly or indirectly, shall not
(i) vote against, (ii) refuse to consent to, (iii) refuse to
agree to, or (iv) refuse to approve, any action requiring the
vote, consent, agreement or approval of the Members or of the
parties to this Agreement or the Board of Managers if such
action is supported by MST, in its capacity as a Member and as
a party to this Agreement and acting through its designee on
the Board of Managers (i.e., the MST Manager (as defined in
the Joint Venture Agreement)), unless a committee of the Board
of Directors of IGEN reasonably concludes that such action is
not in the best interests of IGEN and its stockholders;
provided that, IGEN hereby agrees that, in connection with its
consideration of such action, IGEN shall take into
consideration the interests of the Company."
5. MISCELLANEOUS PROVISIONS
5.1 Representations
Each of IGEN and MST hereby represents to the other that it
has the power and authority to enter into this Amendment and to perform its
obligations under the Agreement, as amended by this Amendment, and under this
Amendment, and that its execution, delivery and performance hereof has been duly
and validly authorized (including in the case of IGEN, approval by the committee
of the Board of Directors of IGEN established by the Board of Directors of IGEN
at its meeting on August 31, 2000). Each of IGEN and MST hereby represents to
the other that its execution and delivery of this Amendment and its performance
of the Agreement, as amended by the Amendment, will not constitute a breach of
and will not conflict with any agreement or duty to or by which such party is
bound, and will not violate any law or governmental regulation applicable to
such party.
11
5.2 Additional Actions and Documents
Each Member hereby agrees to take or cause to be taken such
further actions, to execute, acknowledge, deliver and file or cause to be
executed, acknowledged, delivered and filed such further documents and
instruments (including an amended and restated version of the Agreement, as
amended by this Amendment), and to use commercially reasonable efforts to obtain
such consents, as may be necessary or as may be reasonably requested in order
fully to effectuate the purposes, terms and conditions of the Agreement, as
amended by this Amendment.
5.3 Effect on Agreement
It is the express intention and agreement of the Members that
all provisions of the Agreement, as amended by this Amendment, shall survive and
remain in full force and effect following the execution and delivery of this
Amendment, and the provisions of this Amendment shall be considered part of, and
governed by, the terms of the Agreement (as so modified). Unless the context
otherwise requires, any reference to the Agreement as of and after the date of
this Amendment (including, as appropriate, references to "this Agreement" in
quoted sections in this Amendment) shall be deemed to be a reference to the
Agreement, as amended by this Amendment.
5.4 Headings
Section and subsection headings contained in this Amendment
are inserted for convenience of reference only, shall not be deemed to be a part
of this Amendment for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
5.5 Governing Law
This Amendment, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed in accordance with the laws of the State of Delaware (but not
including the choice of law rules thereof).
5.6 Survival
The provisions of Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6 of
this Amendment shall survive expiration or termination for any reason of the
Agreement.
12
5.7 Execution in Counterparts
This Amendment may be executed and delivered in any number of
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
13
IN WITNESS WHEREOF, the undersigned have caused this First Amendment of
Limited Liability Company Agreement to be duly executed and delivered on their
behalf, as of the day and year first hereinabove set forth.
IGEN INTERNATIONAL, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
MESO SCALE TECHNOLOGIES, LLC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President and
Chief Executive Officer
14