licenseethe research foundation for - …€¦ · web viewwhereas, foundation owns certain...

14724924.2

NP Draft 11/21/2013Subject to further review

Exclusive License Agreementbetween

The Research Foundation for The State University of New Yorkand

<<Licensee Name>>

1. DEFINITIONS..................................................................................................................................... 22. GRANT OF RIGHTS AND RETAINED RIGHTS.................................................................................63. CONSIDERATION AND PAYMENT TERMS......................................................................................74. DUE DILIGENCE AND COMMERCIALIZATION ACTIVITIES..........................................................105. SUBLICENSING <<OPTIONAL>>....................................................................................................116. PATENT PROSECUTION AND PATENT COSTS............................................................................127. BOOKS, RECORDS, AND REPORTS..............................................................................................148. ENFORCEMENT OF PATENT RIGHTS...........................................................................................179. INDEMNIFICATION AND INSURANCE............................................................................................1910. TERMINATION................................................................................................................................. 2211. WARRANTY AND LIABILITY............................................................................................................2412. ASSIGNMENT.................................................................................................................................. 2613. OBLIGATIONS TO FEDERAL GOVERNMENT AND OTHER SPONSORS....................................2614. NON-USE OF NAMES......................................................................................................................2615. FOREIGN LAWS...............................................................................................................................2716. COMPLIANCE WITH LAWS.............................................................................................................2717. CONFIDENTIALITY.......................................................................................................................... 2918. MISCELLANEOUS............................................................................................................................31EXHIBIT A: Field of Use and Territory............................................................................................................1EXHIBIT B: Licensed Patents.........................................................................................................................2EXHIBIT C: Know How...................................................................................................................................3EXHIBIT D: Commercialization Plan.............................................................................................................. 4[Schedule 1: Form of Convertible Promissory Note][Schedule 2: Option Rights][Schedule 3: Limited Liability Company Operating Agreement]

14724924.2

This agreement (hereinafter, “Agreement”) is made and is effective as of <<Effective Date>> (hereinafter, “Effective Date”) by and between The Research Foundation for The State University of New York, on behalf of <<University Campus>>, a non-profit educational corporation, organized and existing under the laws of the State of New York, having offices at <<RF Campus Address>> (hereinafter, “Foundation”), and Licensee, a <<State>> <<corporation/limited liability company>>, having a primary address at <<Licensee Address>> (hereinafter, “Licensee”).

RECITALS

WHEREAS, Foundation owns certain intellectual property rights in and to the Technology, as defined in this Agreement; and

WHEREAS, Foundation desires to have the Technology developed and used to the fullest extent for the benefit of the public; and

WHEREAS, Licensee desires to obtain rights to certain Licensed Subject Matter related to the Technology, as provided herein, for development and commercialization purposes.

NOW, THEREFORE, subject to the term and conditions contained herein, and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

All capitalized terms used in this Agreement will have the meanings stated below or defined elsewhere in the Agreement.

1.1. “Affiliate” means any corporation or other business entity that controls, is controlled by, or is under common control with a Party. A corporation or other entity will be regarded as in control of another corporation or entity if it owns or directly or indirectly controls at least fifty percent (50%) of the outstanding shares or other voting rights of the other corporation or entity having the right to elect directors or such lesser percentage that is the maximum permitted to be owned by a foreign entity in those jurisdictions where majority ownership by foreign entities is prohibited, or (i) in the absence of the ownership of at least fifty percent (50%) of the outstanding shares or other voting rights of a corporation, or (ii) in the case of a non-corporate business entity, if it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the corporation or non-corporate business entity, as applicable, whether through the ownership or control of voting securities, by contract or otherwise.

1.2. “Annual Minimum Royalties” has the meaning assigned and ascribed in Section 3.4.

1.3. “Commercialization Plan” means the commercialization plan set forth in EXHIBITD.

1.4. “Field” means the field(s) of use set forth in EXHIBIT A.

2

14724924.2

1.5. “Indemnified Parties” has the meaning assigned and ascribed in Section 9.1.(a).

1.6. “License Maintenance Fee(s)” has the meaning assigned and ascribed in Section 3.3.

1.7. “Licensed Patents” means the patents and patent applications listed in EXHIBIT B.

1.8. “Licensed Product(s)” means all products that (i) if made, used, offered for sale, sold, imported, leased or otherwise transferred within the Territory, but for the license granted herein, would infringe the Patent Rights, or (ii) incorporate, use, or are made with the use of the Technology, or any part thereof, or (iii) are made by using a Licensed Service as defined in Section 1.9, or (iv) when used, practice a Licensed Service as defined in Section 1.9. As used within this Agreement, the term “Licensed Product(s)” includes “Licensed Service(s)” as defined in Section 1.9.

1.9. “Licensed Service(s)” means (i) any method, process, procedure or service that, but for the license granted herein, would infringe the Patent Rights, or (ii) any method, process, procedure, or service that results in the manufacture of a Licensed Product, as defined in Section 1.8.

1.10. “Licensed Subject Matter” means the Patent Rights and related Technology within the Field.

1.11. “Material Obligations” has the meaning assigned and ascribed in Section 10.1.(a).

1.12. “Milestone Payments” has the meaning assigned and ascribed in Section 3.6.

1.13. “Net Sales” means the gross revenues received by Licensee, Affiliates, and Sublicensees from the manufacture, use, sale, lease, or other transfer of any Licensed Product including, without limitation, the provision of any Licensed Service, less sales and/or use taxes actually paid, import and/or export duties actually paid, outbound transportation paid, prepaid or allowed, and amounts allowed or credited, and actually refunded, due to returns (as reflected on the invoice, and not to exceed the original billing amount). In this context, gross revenues will also include the fair market value of any non-cash consideration received by Licensee, Affiliates and Sublicensees for the manufacture, use, sale, lease, or other transfer of Licensed Product and provision of any Licensed Service.

1.14. “Patent Costs” means all costs incident to preparing, filing, prosecuting, and maintaining the Patent Rights in the United States and elected foreign countries, and any and all costs incurred in filing continuations, divisional applications, or related applications thereon and any re-examinations, reissue, or similar post-grant proceedings thereof.

1.15. “Patent Rights” means Foundation’s patent rights to any subject matter that is claimed in, could be claimed in, or is otherwise covered by: (i) one or more Valid Claims in any of the Licensed Patents, including any reissues, or reexaminations thereof; and (ii) any continuation or divisional applications of the Licensed Patents

3

14724924.2

filed before the Effective Date or during the Term, and any patents issued thereon, including, without limitation, reissued patents.

1.16. “Payments Due” means, individually or collectively, any Royalties, License Maintenance Fees, Annual Minimum Royalties, Sublicensing Fees, Milestone Payments, late payment fees, Patent Costs, or other amounts due to Foundation under this Agreement.

1.17. “Reporting Period” means a calendar quarter.

1.18. “Royalty” and “Royalties” has the meaning assigned and ascribed in Section Error: Reference source not found.

1.19. “Sublicense Agreement” (or “Sublicense”) means the agreement under which Licensee grants to an authorized Sublicensee any or all of the rights granted to Licensee under this Agreement.

1.20. “Sublicensee” means any non-Affiliate third party to whom Licensee grants a sublicense of any or all of the rights granted to Licensee under this Agreement.

1.21. “Sublicensing Fee(s)” has the meaning assigned and ascribed in Section 3.5.

1.22. “Sublicensing Revenue” means any payments that Licensee or an Affiliate receives from a Sublicensee in consideration of the rights granted in a Sublicense Agreement, including without limitation, license fees, milestone payments, license maintenance fees, service fees, royalties, and other payments, but specifically excluding any Royalties.

1.23. “Technology” means: (i) the technology developed at the <<University Campus>> on or before the Effective Date and which Foundation is free to disclose, and is disclosing, to Licensee, as set forth in Foundation Docket Number _____________________ titled ____________; and (ii) the technical information, formulations, knowledge, processes, and procedures, whether or not patented or patentable, in which Foundation has a legal interest and is free to disclose, and is disclosing, to Licensee, as set forth in EXHIBIT C attached hereto which is related to the Licensed Patents, and which was developed prior to the Effective Date at the <<University Campus>>.

1.24. “Term” means the period of time beginning on the Effective Date and ending on the earlier of: (i) the expiration date of the last to expire Patent Right; or (ii) <<number>> (<<#>>) years from the date of the first sale of a Licensed Product.

1.25. “Territory” means the territory set forth in EXHIBIT A.

1.26. “Valid Claim” means any unexpired claim in an issued unexpired patent, or any claim of a pending patent application or supplementary protection certificate within the Patent Rights that has not been revoked, abandoned, disclaimed or withdrawn, or held unenforceable, unpatentable, or invalid by a court of competent jurisdiction in a final judgment that has not been appealed within the time allowed by law or from which there is no further appeal.

4

14724924.2

[Remainder of page intentionally left blank]

5

14724924.2

2. GRANT OF RIGHTS AND RETAINED RIGHTS

2.1. Exclusive License. Subject to the terms of this Agreement, including without limitation Section 2.2, Foundation grants to Licensee an exclusive license under the Licensed Subject Matter to make, have made, use, sell, and offer for sale Licensed Product(s) in the Territory during the Term, including the right to sublicense as set forth in Section 5. This license is subject to the overriding obligations to the U.S. Government set forth in 35 U.S.C. §§ 200-212 and any future amendments thereto, and applicable governmental implementing regulations, including but not limited to those described in Section 13 herein.

2.2. Retained Rights.

Foundation reserves the right to:

(a) Use the Licensed Subject Matter for academic, educational, and research purposes, including, without limitation, sponsored research and collaborations;

(b) Publish or otherwise disseminate any information about the Technology at any time; and

(c) Allow, at Foundation’s sole discretion, other educational and nonprofit institutions to use the Licensed Subject Matter for academic, educational, and research purposes.


6

14724924.2

3. CONSIDERATION AND PAYMENT TERMS

The parties hereto understand that the fees and royalties payable by Licensee to Foundation under this Agreement are partial consideration for the license granted under this Agreement. Licensee will pay Foundation:

3.1. Upfront Fee. Within thirty (30) days of the Effective Date, Licensee will pay to Foundation an upfront, nonrefundable, noncreditable payment of ____________________________ U.S. Dollars (US$______________).

[OPTION: use for issuance of convertible debt in lieu of upfront fees paid in cash. This can also be used in lieu of other cash fees set forth in this Section 3.1]. Such upfront, nonrefundable, noncreditable payment shall be made by Licensee delivering to Foundation the Convertible Promissory Note in the form attached hereto as Schedule 1.]

3.2. Equity (Corp). In lieu of cash, other up-front licensing fees and milestone payments, Licensee will issue to Foundation such number of shares of common stock of the capital stock of Licensee as will cause Foundation to own shares of common stock representing at least <<number>> percent (<<#>>%) of the outstanding shares of the capital stock of Licensee on a fully diluted basis through <<number>> U.S. dollars ($<<#>>) of cumulative third party equity financings of Licensee. The stock will be issued pursuant to Foundation’s standard equity documentation, and will include a redemption right exercisable upon certain trigger events.

[OPTION: use when taking future “option” to receive shares instead of receiving shares at closings. In lieu of cash, other up-front licensing fees and milestone payments, Foundation shall have the rights set forth on Schedule 2].

[Alt 3.2] Equity (LLC). In partial consideration for the License, Licensee will issue to Foundation a membership interest representing cumulatively <<number>> percent (<<#>>%) of the outstanding membership interests of Licensee. Separately and additionally, also in partial consideration for the License, Licensee will issue directly to Inventors, in individual allocations according to Appendix A to Schedule 3, concurrently with the execution of this Agreement, respective membership interests representing cumulatively <<number>> percent (<<#>>%) of the outstanding membership interests of Licensee. The Limited Liability Company Operating Agreement providing the respective rights and obligations of members is attached to this Agreement as Schedule 3.

[OPTION: use when taking future “option” to receive member interests instead of receiving membership at closing. In lieu of cash, other up-front licensing fees and milestone payments, Foundation shall have the rights set forth on Schedule 2].

3.3. License Maintenance Fee. Licensee will pay to Foundation a, nonrefundable, noncreditable fee of <<number>> U.S. dollars ($<<#>>) (the “License Maintenance Fee”), per year, and payable on the first anniversary of the Effective Date and annually thereafter on each anniversary of the Effective Date; provided however, that

7

14724924.2

Licensee’s obligation to pay the License Maintenance Fee will end on the first anniversary following the date of Licensee’s first commercial Royalty-generating sale of a Licensed Product.

3.4. Annual Minimum Royalties on Net Sales. Beginning the calendar year of first commercial sales of the first Licensed Product by Licensee, an Affiliate, or Sublicensee, and if the total Royalties paid by Licensee under Section Error:Reference source not found to Foundation in any such year cumulatively amounts to less than the minimum amount specified in the table below for each calendar year (the “Annual Minimum Royalty”), Licensee will pay Foundation the difference between the applicable Annual Minimum Royalty and the total Royalties paid for the applicable calendar year by Licensee to Foundation for said year under Section Error: Reference source not found within thirty (30) days of the end of said calendar year:

Calendar Year Annual Minimum Royalties ($US)

3.5. Sublicensing Fees. Licensee will pay Foundation <<number>> percent (<<#>>%) of the Sublicensing Revenues (“Sublicensing Fees”).

3.6. Milestone Payments. Licensee will pay Foundation milestone payments on certain milestones of the Commercialization Plan according to the following schedule (“Milestone Payments”):

Milestone Milestone Payment ($US)

3.7. Payment Terms. All dollar amounts for Payments Due referenced herein will refer to U.S. Dollars. Payments with designated payment dates are due and payable on or before those dates. Royalties will be due and payable within thirty (30) days after the end of each Reporting Period for the Net Sales received during such Reporting Period. All invoiced amounts, including, but not limited to, the reimbursement of Patent Costs, will be due and payable within thirty (30) days of the respective invoice date. When Licensed Product(s) are sold for currencies other than U.S. Dollars, Royalties will first be determined in such foreign currency and then converted into equivalent U.S. Dollars per the exchange rate quoted in the Wall Street Journal on the last business day of the applicable Reporting Period as such foreign currency per U.S. Dollar. For the avoidance of doubt, Licensee is solely responsible for bank transfer charges, including but not limited to, wire transfer fees.

8

14724924.2

3.8. Payment Address. All payments for Payments Due will be made payable to “The Research Foundation of State University of New York” and will be sent to the following address:

<<University Campus>>AddressAttn:_______________]

For Wire Transfers:Bank: Key Bank of New York

66 South Pearl StreetAlbany, NY 12207

Account Number: 10970107Routing Number: ABA 0213-00077Swift Code: KEYBUS33

Please include the notation: “Office of Technology Licensing at <<University Campus>>”

3.9. Late Payment. In the event that any Payments Due are not timely received by Foundation when due, Licensee will pay to Foundation, in addition to such Payments Due, interest on such Payments Due computed using the lesser rate of: (i) twelve percent (12%) per annum; or (ii) the maximum rate allowable under the applicable law. Interest will be calculated from the date payment was due until actually received by Foundation, inclusive.

3.10. Foreign Charges. Royalties due for sales that occur in any country may not be reduced by any deduction of withholding, value-added taxes, fees, or other charges imposed by the government of such country, except as permitted in the definition of Net Sales.


9

14724924.2

4. DUE DILIGENCE AND COMMERCIALIZATION ACTIVITIES

4.1. Licensee and Foundation have agreed on the initial Commercialization Plan for Licensee’s efforts to develop, market, and commercialize the Licensed Subject Matter and Licensed Product(s).

4.2. Upon execution of this Agreement, Licensee will, either directly or through its Affiliates or authorized Sublicensees, diligently proceed with implementation of the Commercialization Plan.

4.3. Licensee will complete the milestones set forth in the Commercialization Plan by the dates specified therein.

4.4. Licensee acknowledges and agrees that a fundamental purpose of this Agreement is to achieve development and commercialization of the Licensed Subject Matter and Licensed Products, and the terms in this Section 4 constitute material terms of this Agreement. If Licensee fails to perform any of its obligations specified in this Section 4, then Foundation will have the unilateral right and option to: (i) terminate this Agreement; or (ii) modify the terms of the Agreement from an exclusive license to a non-exclusive license. This right to modify the terms, if exercised by Foundation, supersedes the rights granted in Section 2.1 of this Agreement.


10

14724924.2

5. SUBLICENSING <<OPTIONAL>>

5.1. The license granted by this Agreement includes the right of Licensee to grant Sublicenses. With respect to Sublicenses granted pursuant to this Agreement, Licensee will:

(a) seek and secure Foundation’s prior written consent prior to finalizing any Sublicense Agreement, which consent will not be unreasonably withheld;

(b) include in any Sublicense Agreement all of the rights of, and obligations due to, Foundation and contained in this Agreement;

(c) promptly provide to Foundation a copy of each executed Sublicense Agreement;

(d) not receive, or agree to receive, anything of value in lieu of cash as consideration from a third party under a Sublicense without the express written consent of Foundation;

(e) make all Payments Due and deliver all reports due to Foundation whether owed by Licensee, Affiliates, or Sublicensees, and use commercially reasonable efforts to collect all payments due, directly or indirectly, to Foundation from Sublicensees.

5.2. Upon termination of this Agreement for any reason, Foundation, at its sole discretion, will determine whether Licensee will cancel or assign to Foundation any and all Sublicense Agreements. Licensee will include a provision in each Sublicense Agreement which allows Foundation to assume the Sublicense Agreement if: (i) this Agreement is terminated; and (ii) Foundation chooses to assume the Sublicense Agreement.


11

14724924.2

6. PATENT PROSECUTION AND PATENT COSTS

6.1. Patent Rights Management. Foundation will be solely responsible for the preparation, filing, prosecution, and maintenance of the Patent Rights. Licensee agrees to cooperate, and to cause its Sublicensees and Affiliates to cooperate, with Foundation in a timely manner in the preparation, filing, prosecution, and maintenance of Patent Rights by disclosing such information as may be requested from time to time by Foundation and by promptly executing such documents as Foundation may reasonably request in connection therewith. Licensee and its Sublicensees and Affiliates will bear their own costs in connection with their cooperation with Foundation under this Section 6.1. Upon request, Foundation will provide, or will have their legal counsel provide, to Licensee copies of documents received or prepared by Foundation in the prosecution and maintenance of the Patent Rights that are directly related to Licensee’s performance under this Agreement.

6.2. Reimbursement of Patent Costs. Within thirty (30) days of the Effective Date, Licensee will reimburse Foundation for all Patent Costs incurred prior to the Effective Date.

Licensee will pay all Patent Costs incurred after the Effective Date within thirty (30) days after its receipt of an invoice for such Patent Costs.

6.3. Invoicing. For all Patent Costs, Foundation may, at its option: (i) invoice Licensee directly; or (ii) have the law firm or other entity providing the patent-related services to send a copy of each Patent Cost invoice to Licensee for direct payment by Licensee of such Patent Cost expenses.

6.4. If Licensee decides to discontinue its support of Patent Costs for a specific Licensed Patent(s) and/or for a particular issued patent or pending patent application claiming priority to a Licensed Patent(s), Licensee will notify Foundation in writing one hundred and eighty (180) days prior to any such discontinuation. Licensee will be responsible for reimbursing Foundation for any Patent Costs associated with such Patent Rights that Licensee incurred up to one hundred and eighty (180) days after the date of the receipt of notice, whether or not such costs were invoiced to and/or paid by Licensee. Upon such discontinuation, Foundation, at its sole discretion, will have the rights to: (i) abandon the application and any related applications; (ii) exclude the patent application, and any related applications, including any application that claims priority to the patent application or any patent application from which the patent application may claim priority, from any license granted under this Agreement; (iii) grant only a non-exclusive license to the patent application, and any related applications; (iv) convert any exclusive license granted under this Agreement to a non-exclusive license; and/or (v) terminate this Agreement. Foundation and Licensee agree to amend EXHIBIT B in a timely manner after notification of discontinuation of support under this Section 6.4.

12

14724924.2


13

14724924.2

7. BOOKS, RECORDS, AND REPORTS

7.1. Full and Accurate Records. Licensee will keep, and will cause its Affiliates and Sublicensees to keep, full and accurate books and records in sufficient detail so that Licensee’s compliance with its obligations under this Agreement can be properly determined without undue delay or difficulty. Such books and records will be maintained for at least five (5) years after the Reporting Period(s) to which they relate. Books and records will include but not be limited to: accounting general ledgers; invoice/sales registers; original invoice and shipping documents; federal and state business tax returns; company financial statements; sales analysis reports; inventory and manufacturing records; sublicense and distributor agreements; price lists, product catalogs, and other marketing materials; and laboratory notebooks.

7.2. Inspection of Records. Foundation may, from time to time and at any reasonable time, not exceeding once every twelve (12) months, through such individuals and auditors as Foundation may designate, inspect the books and records of Licensee, its Affiliates, and its Sublicensees, in order to verify the accuracy of any reported statement by Licensee of Payments Due or amounts paid, or to determine compliance with any other obligation(s) of Licensee under this Agreement.

After completion of any such inspection, Foundation will notify Licensee in writing of any discrepancies in Payments Due or amounts paid to Foundation. Such inspection will be made at the expense of Foundation, unless such inspection discloses an underpayment discrepancy of five percent (5%) or more in the Payments Due or amounts paid to Foundation. In such case, Licensee will be responsible for reimbursing Foundation for the inspection fee and expenses associated with such inspection. Licensee agrees to pay past due amounts for any deficiency error in Payments Due as determined by the auditor, including without limitation any payment deficiency since the Effective Date of the Agreement. Any underpayment as determined by the auditor will bear interest at one percent (1%) per month from the date the original payment was due. Foundation and the auditor will maintain in confidence such inspection and the resulting report. The auditor may from time to time consult the Foundation and any of its employees or third party counsel on questions as they relate to this Agreement. The auditor may not disclose financial or proprietary information except as required to conduct the audit, to report the results of the audit, or as otherwise permitted by this Agreement or if the information already exists in the public domain. No other confidentiality agreement will be required to conduct the audit of the Licensee’s books and records.

7.3. Sublicensee Reports. Licensee will provide Foundation with copies of all reports Licensee receives from Sublicensees within thirty (30) days of Licensee’s receipt of such reports.

7.4. Reporting Period Reports. Within thirty (30) days after the end of each Reporting Period during the Term, Licensee will provide reports containing the following information for the applicable Reporting Period: (i) the number and type of Licensed Products made by or for Licensee, its Affiliates, and its Sublicensee(s); (ii) the

14

14724924.2

number and type of Licensed Products sold by Licensee, its Affiliates, and its Sublicensee(s); (iii) the Net Sales (and the calculation of Net Sales); (iv) the Royalties due under Section Error: Reference source not found; (v) the Sublicensing Revenue (and the calculation of Sublicensing Revenue); (vi) the Sublicensing Fees due under Section 3.5; and (vii) the total amount (Royalties and Sublicensing Fees) due to Foundation. Licensee will submit these reports to Foundation even if there are no Payments Due for a particular Reporting Period. The foregoing will be provided on a country-by-country basis.

7.5. Annual Reports. Within thirty (30) days after the end of each calendar year during the Term, Licensee will also provide reports containing the following information for the applicable calendar year: (i) the number and type of Licensed Products made by or for Licensee, its Affiliates, and its Sublicensee(s); (ii) the number and type of Licensed Products sold by Licensee, its Affiliates, and its Sublicensee(s); (iii) the Net Sales (and the calculation of Net Sales); (iv) Royalties under Section Error:Reference source not found; (v) the Sublicensing Revenue (and the calculation of Sublicensing Revenue); (vi) the Sublicensing Fees under Section 3.5; (vii) any License Maintenance Fees under Section 3.3; (viii) the Annual Minimum Royalties under 3.4; (ix) the milestones completed and the Milestone Payments under 3.6; and (x) the total amount paid or payable for any Payments Due. Licensee will submit these reports to Foundation even if there were no Payments Due for the particular period. The foregoing will be provided on a country-by-country basis.

7.6. Semi-Annual Due Diligence Reports. Within thirty (30) days after the end of each second and fourth calendar quarter, Licensee will provide reports containing the following information relating to the two previous calendar quarters: progress on the commercialization and development of the Licensed Subject Matter and Licensed Products (i.e., new product development, product evaluation and testing, marketing plans, sales forecasts, significant commercialization events, progress on the milestones set forth in Section 4). The foregoing will be provided on a country by country basis.

7.7. Report Certification. An officer of Licensee will sign and certify each report, and all reports will be prepared in accordance with Generally Accepted Accounting Principles.


15

14724924.2

8. ENFORCEMENT OF PATENT RIGHTS

8.1. Foundation and Licensee will promptly inform the other in writing of any actual, alleged, or suspected infringement of a Licensed Patent or violation of any Patent Right by a third party, of which it is aware, and provide available evidence of infringement.

8.2. With respect to any Patent Rights licensed exclusively by Foundation to Licensee under this Agreement, Licensee shall have, for an initial period of ninety (90) days following notice under the provisions of Section 8.1, and only with Foundation’s prior, written authorization, the first right, but not the obligation, to institute and control the prosecution of a suit or to take any other action for infringement of the Patent Rights. Licensee will inform Foundation of its intent to institute such action, in writing, and Foundation will have fifteen (15) days to authorize such action by Licensee, in writing. For clarity, if Foundation does not provide a written authorization within the fifteen day period, Licensee will not be authorized to institute such action. During the fifteen day period, Foundation may also notify Licensee that Foundation will join Licensee in such action under the provisions of Section 8.4.

8.3. Subsequent to Licensee’s initial ninety day period, Foundation shall have the right, but not the obligation, to institute and control the prosecution of a suit or to take any other action for infringement of any of the Patent Rights. If Foundation decides to initiate a lawsuit to enforce Patent Rights pursuant to this Section 8.3, Foundation will notify Licensee in writing. Licensee will have fifteen (15) days from receipt of such notice to notify Foundation that Licensee will join Foundation in such lawsuit under the provisions of Section 8.4. If Licensee does not timely notify Foundation that it will be joining in such lawsuit, then it will be deemed that Licensee has assigned to Foundation all rights, causes of action, and damages resulting from any alleged infringement.

8.4. Foundation and Licensee may agree to enforce patent rights jointly, including by filing a lawsuit jointly. If a lawsuit is brought jointly in the names of both parties, then the out-of-pocket costs shall be borne equally, and any recovery or settlement shall be shared equally. Foundation and Licensee shall agree to the manner in which they shall exercise control over such lawsuit. Each party may, at its own option and expense, be represented by separate counsel of its own selection.

8.5. If any suit is brought involving the enforcement or defense of the Patent Rights, the other party hereto agrees, at the request and expense of the party initiating such suit, to reasonably cooperate and to make available relevant records, papers, information, samples, specimens and the like.

8.6. No settlement or consent judgment or other voluntary final disposition of an enforcement or defense suit initiated by either party to this Agreement may be entered into without the consent of Foundation, which consent will not be unreasonably withheld.

16

14724924.2

8.7. In the event that an action alleging invalidity or noninfringement of the Patent Rights is brought against Licensee, Foundation reserves the right, within thirty (30) days after commencement of such action, to intervene and take over the sole defense of the action at its own expense.

8.8. The total cost of any action commenced or defended solely by Foundation will be borne by Foundation and Foundation will keep any recovery or damages derived therefrom.

8.9. The cost of any infringement action commenced or defended by Licensee will be borne by Licensee. Any recovery or damages resulting from such an action will first be applied to Licensee’s out-of-pocket expenses and legal fees, and second will be applied to Foundation’s out-of-pocket expenses, including legal fees. Any excess recovery or damages will be considered Sublicensing Revenue subject to payment of Sublicensing Fees as set forth in Section 3.5.


17

14724924.2

9. INDEMNIFICATION AND INSURANCE

9.1. Indemnification.

(a) Licensee shall indemnify, defend, and hold harmless Foundation and its trustees, officers, staff, employees, students, and agents and their respective successors, heirs, and assigns (the “Indemnified Parties”), against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Indemnified Parties or any one of them in connection with any third party claims, suits, actions, demands, or judgments: (i) arising out of the design, production, manufacture, sale, use in commerce or in human clinical trials, lease, or promotion by Licensee or by an Affiliate, agent, or Sublicensee of Licensee of any Licensed Product, process or service relating to, or developed pursuant to, this Agreement; or (ii) arising out of any other activities to be carried out by or on behalf of Licensee pursuant to this Agreement.

(b) With respect to an Indemnified Party, Licensee’s indemnification under subsection 9.1.(a)(i) shall apply to any liability, damage, loss, or expense whether or not it is attributable to the negligent activities of such Indemnified Party. Licensee’s indemnification obligation under subsection 9.1.(a)(ii) shall not apply to any liability, damage, loss, or expense to the extent that it is attributable to the negligent activities of any such Indemnified Party.

(c) Licensee agrees, at its own expense, to provide attorneys reasonably acceptable to Foundation to defend against any actions brought or filed against any Indemnified Parties with respect to the subject of indemnity to which such Indemnified Parties are entitled hereunder, whether or not such actions are rightfully brought. Foundation will cooperate in the defense thereof, provided, however, that Foundation will have the right, but not the obligation, to control the defense, at its expense, of any such actions. Foundation and the Indemnified Parties may, at their option and expense, have their own counsel participate in any proceeding which is under direction of Licensee and will cooperate with Licensee and its insurer in the disposition of any such matter; provided, however, that if Licensee shall not defend such actions, Foundation and the Indemnified Parties shall have the right to defend such actions themselves and recover from Licensee all reasonable attorneys' fees and expenses incurred by it during the course of such defense.

(d) Neither Foundation, the Indemnified Parties, nor Licensee shall enter into, or permit, any settlement of any such actions without the express written consent of the other parties, which shall not unreasonably be withheld.

9.2. Security for Indemnification.

(a) At such time as any Licensed Product, process, or service relating to, or developed pursuant to, this Agreement, is commercially distributed or sold, or tested in clinical trials by or on behalf of Licensee, including by its Affiliates or Sublicensees, Licensee shall at its sole cost and expense, procure and maintain policies of comprehensive general liability insurance in amounts not less than (i) $<<Number>> per incident and

18

14724924.2

$<<Number>> annual aggregate during the period that such Licensed Product, process, or service is being tested in clinical trials prior to commercial sale, and (ii) $ <<Number>> per incident and $<<Number>> annual aggregate during the period that such Licensed Product, process, or service is being commercially distributed or sold, and in each case naming the Indemnified Parties as additional insureds. Such comprehensive general liability insurance shall provide: (i) product liability coverage; and (ii) broad form contractual liability coverage for Licensee’s indemnification obligations under Section 9.1 of this Agreement. If Licensee elects to self-insure all or part of the limits described above (including deductibles or retentions which are in excess of $250,000 annual aggregate) such self-insurance program shall include assets or reserves which have been actuarially determined for the liabilities associated with this Agreement and must be acceptable to Foundation.

(b) The minimum amounts of insurance coverage required under this Section 9.2 shall not be construed to create a limit of Licensee’s liability with respect to its indemnification obligations under Section 9.1 of this Agreement.

(c) Licensee shall provide Foundation with written evidence of such insurance upon request of Foundation. Licensee shall provide Foundation with written notice at least sixty (60) days prior to the cancellation, non-renewal, or material change in such insurance; if Licensee does not obtain replacement insurance providing comparable coverage by the end of such sixty (60) day period, Foundation shall have the right to immediately terminate this Agreement period without notice or any additional waiting periods.

(d) Licensee shall maintain such comprehensive general liability insurance beyond the expiration or termination of this Agreement during: (i) the period that any Licensed Product(s), process, or service, relating to, or developed pursuant to, this Agreement is being commercially distributed or sold or tested in clinical trials by or for Licensee, its Affiliates, or its Sublicensee(s); and (ii) a reasonable period after the period referred to in (i) above which in no event shall be less than fifteen (15) years.


19

14724924.2

10. TERMINATION

10.1. Termination for Licensee Breach.

(a) Licensee acknowledges and agrees that Licensee’s obligations under the following provisions are material terms of this Agreement, and Licensee’s failure to meet its obligations under these provisions will be treated as a material breach of this Agreement (“Material Obligations”): (i) obligations under Article 3 to make Payments Due to Foundation on the schedule set forth herein; (ii) obligations under Article 4 to diligently pursue and achieve commercialization activities; (iii) obligations under Article 6 related to patent prosecution and payment of patent costs; (iv) obligations under Article 9 related to indemnification and insurance.

(b) If Licensee should: (i) fail to perform any covenant, condition, or undertaking of the Material Obligations of this Agreement; or (ii) materially breach any other provision of this Agreement; then Foundation may give written notice of such default to Licensee. If Licensee should fail to cure such default within thirty (30) days of notice of such default, then this Agreement may, at Foundation’s option, be terminated by written notice to Licensee.

10.2. Automatic Termination. If Licensee: (i) ceases to attempt to carry on its business with respect to the rights granted in the Agreement; (ii) has filed a bankruptcy action; (iii) becomes insolvent; (iv) makes an assignment for the benefit of creditors; or (v) challenges, whether as a claim, cross-claim, counterclaim or defense, the validity or enforceability of any of the Patent Rights before any court, arbitrator, or other tribunal or administrative agency in any jurisdiction; then this Agreement will immediately terminate without any further action by Foundation.

10.3. Licensee’s Right To Terminate. Licensee may notify Foundation of their desire to terminate this Agreement at any time by giving Foundation ninety (90) days prior written notice. The termination will take effect at the end of the first Reporting Period after the ninetieth day has elapsed.

10.4. Accrued Obligations. Termination of this Agreement will not relieve Licensee, including its Affiliates and Sublicensees, and Foundation of any obligation or liability accrued hereunder prior to such termination, or rescind or give rise to any right to rescind any payments made or other consideration given to Foundation hereunder prior to the time such termination becomes effective. Such termination will not affect in any manner any rights of Foundation arising under this Agreement prior to the date of such termination. Licensee will pay all attorneys’ fees and costs incurred by Foundation in enforcing any obligation of Licensee or accrued right of Foundation.

10.5. Disposition of Licensed Products. Upon expiration or termination of this Agreement by Licensee or Foundation, Licensee will provide Foundation with a written inventory of all Licensed Products in process of manufacture, in use, or in stock. Licensee may dispose of any such Licensed Products within the ninety (90)

20

14724924.2

day period following such expiration or termination, provided, however, that Licensee will pay Royalties and render reports to Foundation thereon in the manner specified herein.

10.6. Survival. The provisions Section 1 (Definitions), Section 7 (Books, Records and Reports), Section 9 (Indemnification and Insurance), Section 10.4 (Accrued Obligations), Section 10.5 (Disposition of Licensed Products), Section 10.6 (Survival), Section 11 (Warranty and Liability), Section 14 (Non-Use of Names), and Section 18 (Miscellaneous) will survive expiration or termination of this Agreement.


21

14724924.2

11. WARRANTY AND LIABILITY

11.1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, FOUNDATION MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND VALIDITY OF PATENT RIGHTS.. ALL MATERIALS PROVIDED BY FOUNDATION UNDER THIS AGREEMENT ARE PROVIDED “AS-IS”.

11.2. NO WARRANTY OR REPRESENTATION IS MADE THAT ANYTHING MADE, USED, SOLD, OR COMMERCIALLY TRANSFERRED, UNDER THE TERMS OF THIS LICENSE, WILL BE FREE FROM INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

11.3. NOTHING IN THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, OBLIGATES FOUNDATION EITHER TO BRING OR TO PROSECUTE ACTIONS OR SUITS AGAINST THIRD PARTIES FOR PATENT INFRINGEMENT OR ENFORCEMENT OR TO FURNISH ANY INTELLECTUAL PROPERTY, INFORMATION OR MATERIALS NOT PROVIDED IN THE LICENSED SUBJECT MATTER.

11.4. IN NO EVENT WILL FOUNDATION BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE EXERCISE OF THIS LICENSE OR THE USE OF THE TECHNOLOGY, LICENSED SUBJECT MATTER, OR LICENSED PRODUCTS, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, LOST DATA, OR DOWNTIME, WHETHER OR NOT FOUNDATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.5. IN NO EVENT WILL FOUNDATION’S AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES, OR DAMAGES, FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT), AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE FEES RECEIVED BY FOUNDATION FROM LICENSEE PURSUANT TO THIS AGREEMENT. LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS ARTICLE 11 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

11.6. THIS AGREEMENT DOES NOT CONFER BY IMPLICATION, ESTOPPEL, OR OTHERWISE ANY LICENSE OR RIGHTS TO ANY OTHER FOUNDATION PROPERTY OTHER THAN THOSE RIGHTS EXPRESSLY STATED HEREIN.


22

14724924.2

12. ASSIGNMENT

12.1. This Agreement and the license granted hereunder may not be assigned or transferred by Licensee except in connection with the sale or other non-bankruptcy transfer of Licensee’s business to which the license granted hereunder relates. Licensee will give Foundation at least thirty (30) days prior written notice of any assignment or transfer of Licensee’s business to which the license granted hereunder relates, and will provide Foundation with documentation executed by the assignee or transferee that confirms their agreement to be bound by the terms and provisions of this Agreement.

13. OBLIGATIONS TO FEDERAL GOVERNMENT AND OTHER SPONSORS

13.1. The Agreement will be subject to the rights of the United States Government, if any, resulting from any funding of the Technology by the United States Government. This Agreement will also be subject to the rights of any other entities that may have contributed funding to development of the Technology, if any. Licensee acknowledges that such rights, if applicable to Technology, may reserve to the United States Government, a royalty-free, non-exclusive, non-transferable license to practice or have practiced on its behalf any government-funded invention claimed within any associated patents or patent applications as well as other rights.

13.2. Licensee agrees that Licensed Products leased or sold in the United States will be manufactured substantially in the United States, pursuant to 35 U.S.C. § 204.

14. NON-USE OF NAMES

14.1. Licensee agrees that it will not use Foundation’s name or State University of New York, or <<University Campus>>, or any adaptation thereof (including trademarks, logos, and symbols associated with Foundation, “State University of New York”, and “<<University Campus>>”) (collectively “SUNY”), or the names of the scientists, researchers, or others employed at or with SUNY in any advertising, promotional, or sales literature without first obtaining Foundation’s prior written consent, or in the case of the names of such researchers, scientists, or employees, the prior written consent of the individuals, except that Licensee may state that it is a licensee of the Foundation.

15. FOREIGN LAWS

15.1. When required by local or national law, Licensee will register this Agreement, pay all costs and legal fees connected therewith, and otherwise insure that the local and national laws affecting this Agreement are fully satisfied.

23

14724924.2

16. COMPLIANCE WITH LAWS

16.1. General Compliance. Licensee will ensure compliance with all applicable county, state, federal or foreign laws, rules, and regulations governing the production, use, marketing, sale, and distribution of Licensed Products.

16.2. Export Control Laws. Licensee and its Affiliates and Sublicensees will comply with all U.S. laws and regulations controlling the export of certain commodities and technical data, including, without limitation, all export control regulations of the U.S. Department of Commerce and the International Traffic In Arms Regulations of the U.S. Department of State, subject to all exemptions and exclusions thereto. Among other things, these laws and regulations prohibit the export, or require a license for the export, of certain types of commodities and technical data to specified countries.

(a) Licensee Export. Licensee will not knowingly, unless prior, written authorization is obtained from Foundation and in full compliance with all U.S. laws and regulations, export, directly or indirectly, to any restricted country: (i) any technical data received from Foundation under this Agreement; and (ii) any Licensed Product or technical data. Licensee shall be solely responsible for obtaining all licenses, permits, or authorizations as required from time to time by the U.S. and any other government for any such export or re-export. Foundation makes no representation that an export license is or is not required, nor does Foundation make a representation that, if required, a license will be issued by the U.S. Department of Commerce or other appropriate governmental entity.

(b) Licensee Disclosure to Foundation. Licensee will not disclose or transfer any export controlled technology or technical data identified on any US export control list, including, but not limited to, the Commerce Control List (CCL) at 15 C.F.R. § 774 and the U.S. Munitions List (USML) at 22 C.F.R. § 121. In the event Licensee intends to provide Foundation with export controlled information, Licensee will inform Foundation, in writing, thirty (30) days prior to the release of export controlled technology or technical data. Licensee agrees not to provide any export controlled information to Foundation without the written authorization of Foundation.

24

14724924.2

17. CONFIDENTIALITY

17.1. Confidential Information. As used in this Agreement, “Confidential Information” will mean confidential or proprietary information exchanged between the parties hereunder and relating to the Technology or the performance of the obligations set forth herein, including without limitation: (i) written or other tangible information marked as confidential or proprietary; (ii) orally disclosed information that is identified as confidential and summarized in a notice delivered within thirty (30) days of the disclosure; and (iii) information that should reasonably be considered confidential under the context in which the disclosure is made ( i.e., nonpublic patenting information and nonpublic infringement information).

17.2. Confidentiality Obligations. Each party agrees to: (i) maintain the other party’s Confidential Information with the same level of care as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care; and (ii) not disclose the other party’s Confidential Information to any other party, without the prior written consent of the disclosing party. Each party agrees to limit its use of the other party’s Confidential Information to the purposes permitted by this Agreement. The obligation of confidentiality under this Section 17.2 shall continue for five (5) years from the expiration or termination of this Agreement.

17.3. Exceptions. The obligations of either party under Section 17.2 will not apply to information that the receiving party can demonstrate: (i) was in its possession at the time of disclosure and without restriction as to confidentiality; (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party; (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party unless the receiving party should reasonably conclude that the information is Confidential Information; (iv) is independently developed by the receiving party without regard to the Confidential Information of the other party; or (v) is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority; provided, however, the receiving party shall: (a) give disclosing party, to the extent possible, advance notice prior to disclosure so the disclosing party may contest the disclosure or seek a protective order; and (b) limit the disclosure to the minimum Confidential Information that is legally required to be disclosed.

17.4. Injunctive Relief. The parties agree that the breach, or threatened breach, of any of the confidentiality provisions of this Article 17 may cause irreparable harm without adequate remedy at law. Upon any such breach or threatened breach, Licensee or Foundation will be entitled to injunctive relief to prevent the other party from commencing or continuing any action constituting such breach, without having to post a bond or other security and without having to prove the inadequacy of other

25

14724924.2

available remedies. Nothing in this Section will limit any other remedy available to either party.


26

14724924.2

18. MISCELLANEOUS

18.1. Governing Law. This Agreement will be construed, governed, interpreted and applied in accordance with the laws of the State of New York, except that questions affecting the construction and effect of any patent will be determined by the law of the country in which the patent was granted. The parties consent to the exclusive personal jurisdiction of the state and federal courts of the State of New York.

18.2. Entire Agreement. This Agreement, including any Exhibits or attachments hereto, embodies the entire agreement and understanding among the parties to this Agreement and supersedes all prior agreements and understandings relating to the subject matter of this Agreement. None of the terms or provisions of this Agreement may be altered, modified, or amended except by the execution of a written instrument signed by the parties hereto.

18.3. Severability. The provisions of this Agreement are severable, and in the event that any provisions of this Agreement are determined to be invalid or unenforceable under any controlling body of law, such invalidity or unenforceability will not in any way affect the validity or unenforceability of the remaining provisions hereof.

18.4. Construction. Both parties contributed equally to the drafting of all parts of this Agreement and agree to all of the terms herein. Both parties reviewed this Agreement thoroughly prior to execution.

18.5. Notices. All notices, requests, consents, and other communications to be provided under this Agreement must be in writing and will be delivered in person or sent overnight delivery by a nationally recognized courier or by certified or registered mail, return receipt requested, to the addresses provided below, and will be deemed to have been given when hand delivered, one (1) day after mailing when mailed by overnight courier, or five (5) days after mailing by registered or certified mail:

If to Licensee, to:

________________________________________________________________________

If to Foundation, to:

<<RF Campus Address>><<RF Campus Address>><<RF Campus Address>>Attn: Director

27

14724924.2

18.6. No Waiver. No waiver by either party hereto of any breach or default of any of the covenants or agreements herein set forth will be deemed a waiver as to any subsequent or similar breach or default.

18.7. Patent Marking. As required by law, Licensee will mark, and will cause its Affiliates and Sublicensees to mark, all Licensed Products that are manufactured or sold under this Agreement with: (i) the number of each issued patent under the Patent Rights that applies to such Licensed Product; or (ii) the word ‘patent’ or the abbreviation ‘pat.’ together with an address of a posting on the Internet, accessible to the public without charge for accessing such address, that associates such Licensed Product with the number of the issued patent under the Patent Rights.

18.8. Independent Parties. This Agreement will not be construed as creating a relationship of employment, agency, partnership, joint venture, or any other form of legal association between Licensee and Foundation. The relationship between the parties shall never be construed to be that of employer-employee. Neither party has any power to bind the other party or to assume or to create any obligation or responsibility on behalf of the other party or in the other party’s name.

18.9. Force Majeure. Neither party will be liable for failure or delay of fulfillment of all or part of this Agreement, directly or indirectly owing to acts of nature, governmental orders or restriction, war, warlike conditions, revolution, riot, looting, strike, lockout, fire, flood, or any other cause or circumstances beyond the parties’ control.

18.10. Headings. The headings of the articles and sections are inserted for convenience of reference only, and are not intended to influence the interpretation of this Agreement.

18.11. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Further, either Party’s signature to a copy of this Agreement will be deemed a signature to, and may be attached to, any other identical copy of the Agreement. Facsimile or electronic signatures will be as binding and effective as original signatures.

[Signature page to follow]

28

14724924.2

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.

a. LICENSEE THE RESEARCH FOUNDATION FOR

THE STATE UNIVERSITY OF NEW YORK

By: ______________________________ By: _____________________________[NAME, TITLE] [NAME, TITLE]

Date: ______________, 20__ Date: ______________, 20__

29

EXHIBIT A:Field of Use and Territory

Authorized Fields of Use:

Territory:

1

EXHIBIT B:Licensed Patents

Patent or Application Number

Location/Type of Patent or Patent Application

Title (RF Docket Number)

Filed Issued Assignee Inventors Sponsor

2

EXHIBIT C:Know How

3

EXHIBIT D:Commercialization Plan

Insert description of commercialization plan and key milestones.

4

MILESTONE COMPLETION DATE

SCHEDULE 1:

FORM OF CONVERTIBLE PROMISSORY NOTE

[GENERAL INSTRUCTIONS: Only use this note where a Technology License Agreement is being executed and the

upfront fee (or other fee paid in cash) is being paid with a convertible note, instead of cash. Do not make changes to this form (other than as advised in the form) without contacting

RF Office of General Counsel. This is drafted as an unsecured note. If the Foundation desires security for payment,

please contact RF Office of General Counsel. Do not circulate before deleting all instructions highlighted in yellow. Do fill in all blanks highlighted in yellow. Consider whether the parties should execute, or agree to execute RF’s form of

stockholders’ agreement to be effective should RF convert.

CONVERTIBLE PROMISSORY NOTE

[INSERT AMOUNT] [INSERT DATE]

FOR VALUE RECEIVED, [INSERT NAME OF LICENSEE], a [STATE] [INSERT TYPE OF ENTITY], with a primary address at [INSERT ADDRESS] (the “Company”), hereby unconditionally promises to pay to the order of The Research Foundation for The State University of New York, on behalf of [INSERT CAMPUS], a non-profit educational corporation, organized and existing under the laws of the State of New York, having offices at [INSERT ADDRESS] (the “Lender”), in lawful money of the United States of America and in immediately available funds, the principal sum of [___________ dollars ($________)] (the “Principal Amount”), together with accrued and unpaid interest thereon, payable on the dates and in the manner set forth below (the “Loan”). This note is being issued pursuant to that certain Exclusive License Agreement by and among the Company and the Lender, dated as of [INSERT DATE OF LICENSE] (the “License Agreement”), whereby, the Company agreed to issue this note as payment of the [upfront fee under Section 3.1 of the License Agreement].

1. Principal Repayment. Subject to the earlier conversion of this note under Section 5 below, the outstanding Principal Amount of the Loan and all accrued and unpaid interest thereon shall be due and payable by Company on the [___________] anniversary of the date hereof (the “Due Date”). The Company may prepay this note in whole without penalty or premium; provided that the Company first provide the Lender with thirty (30) days’ written notice of its intention to make such prepayment, during which thirty (30) day period, the Lender may exercise its rights with respect to the conversion of this note under Section 5 below.

2. Interest Rate. The Company further promises to pay interest on the sum of the unpaid Principal Amount outstanding on each day, from the date of this note until the entire Principal Amount shall have been repaid in full or converted under Section 5 of this note, which interest shall accrue at a rate equal to [INSERT INTEREST RATE] per annum; provided, however, that upon the occurrence of an Event of Default (as defined herein) interest shall accrue at a rate equal to [INSERT DEFAULT INTEREST RATE] per annum for so long as such Event of Default is continuing. Interest shall be payable at maturity and shall

1

be calculated on the basis of a 365-day year for the actual number of days elapsed. All accrued and unpaid interest shall be due and payable on any date on which the outstanding principal balance is due (whether by acceleration, maturity or otherwise).

In no event shall the amount of interest due or payable under this note exceed the maximum rate of interest allowed by applicable law and, in the event any such payment is inadvertently paid by the Company or inadvertently received by the Lender, then such excess sum shall be credited as a payment of principal.

3. Place of Payment. All amounts payable hereunder shall be payable to the Lender at the Lender’s address as set forth above or such other address as the Lender specifies to the Company in writing.

4. Application of Payments. Payment on this note shall be applied first to costs and expenses of collection, if any, and then to accrued interest, and thereafter to the outstanding principal balance hereof.

5. Conversion.

(a) Optional Conversion. This note (including all of the amounts due hereunder, including the Principal Amount and the accrued and unpaid interest thereon) may be converted, at the option of the Lender, into the Company’s [INSERT TYPE OF SECURITY, E.G., COMMON STOCK] (the “Equity Securities”). The number of Equity Securities issuable to the holder of this note upon conversion thereof pursuant to this Section 5(a) shall be equal to the outstanding Principal Amount together with the accrued but unpaid interest thereon divided by [INSERT DOLLAR AMOUNT OR FORMULA, SUCH AS the lowest price per unit at which Equity Securities were purchased by a third-party in a bona-fide, arm’s length transaction that closed on a date that is the closest date prior to the effective date of such conversion].

(b) Conversion Upon Acquisition .

(i) If the Company proposes to consummate a transaction which constitutes a “Sale or Merger” (as defined below) prior to the Due Date and this note has not been previously paid or converted then the Lender may, at its option, (1) convert this note (including all of the amounts due hereunder, including the Principal Amount and the accrued and unpaid interest thereon) into Equity Securities, which such conversion shall be effective immediately prior to the consummation of the Sale or Merger, or (2) declare all outstanding principal and accrued but unpaid interest thereon immediately due and payable upon consummation of the Sale or Merger. The number of Equity Securities issuable to the holder of this note upon the conversion of the note, if at all, at the election of the Lender, as provided in this Section 5(b) in connection with a Sale or Merger, shall be equal to the outstanding Principal Amount together with the accrued but unpaid interest thereon divided by [INSERT DOLLAR AMOUNT OR FORMULA, SUCH AS the lowest price per unit at which Equity Securities were purchased by a third-party in a bona-fide, arm’s length transaction that closed on a date that is the closest date prior to the effective date of such conversion].

(ii) A “Sale or Merger” shall mean any of the following: (1) the merger or consolidation of the Company into or with another entity in which the owners of the Company immediately preceding such merger or consolidation (solely by virtue of their securities of the Company) shall own less than fifty percent (50%) of the voting securities of the surviving entity; (2) the sale, transfer, license or lease, whether in a single transaction or pursuant to a series of related transactions or plan, of all or substantially all the assets of the Company; (3) a sale or transfer of fifty percent (50%) or more of the Company’s

2

outstanding voting securities (whether through actual or beneficial ownership); or (4) an initial public offering of Licensee’s stock pursuant to an effective registration statement under the Securities Act of 1933.

(c) Mechanics of Conversion.

(i) The number of Equity Securities issuable to the holder of this Note pursuant to this Section 5 are hereinafter referred to as the “Conversion Securities.”

(ii) As promptly as practicable after the conversion date (but in no case later than five (5) business days thereafter), the Company, at its expense, will issue and deliver to the Lender a certificate or certificates for the Conversion Securities. Upon conversion and delivery of such certificate or certificates, (1) this note shall become fully paid and satisfied, and (2) the Lender shall surrender this note, duly endorsed as “Paid in Full”, to the Company. For purposes of this note, the term “business day” means any day that is not a Saturday, Sunday, legal holiday or other day on which banks are required to be closed in New York, New York.

(iii) The Company shall provide the Lender with at least fifteen (15) business days’ prior written notice of any proposed Sale or Merger; such written notice to contain the material terms of any such Sale or Merger, including the valuation of the Company or the consideration receivable in such Sale or Merger. If applicable, the Lender shall provide its written election to the Company to convert this note within ten (10) business days of the receipt of the notice by the Company of such Sale or Merger; such election to convert the Note to be contingent upon the consummation of any such Sale or Merger. [Failure to give such notice within such period shall mean that the Lender has waived its right to convert this note as set forth herein and the outstanding principal and accrued but unpaid interest on this note shall be immediately due and payable upon consummation of the Sale or Merger] [NOTE: Consider whether the default rule should be that conversion is automatic]

(d) Issue Taxes. The Company shall pay any and all issue and other taxes that may be payable in respect of any issuance or delivery of the Conversion Securities.

(e) Authorization and Reservation of Equity Securities Issuable Upon Conversion. The issuance of the Equity Securities from time to time issuable upon conversion of this note is authorized by the Company’s organizational documents and shall be reserved by the Company for issuance to the Lender upon conversion of this note. Furthermore, if at any time the number of authorized Equity Securities shall not be sufficient to effect the conversion of this note, the Company shall promptly take such action as is necessary to ensure that the requisite number of Equity Securities are available for issuance to the Lender upon conversion hereof, including, without limitation, obtaining the requisite owner approval of any necessary amendments to Company’s organizational documents. The issuance of this note has been approved by the owners of the Company.The Company covenants and agrees that all Conversion Securities will, upon issuance, be validly issued and outstanding, fully paid and nonassessable, and free from all taxes, liens and charges with respect to the issuance thereof.

6. Events of Default; Remedies.

(a) Events of Default. Each of the following events shall constitute an “Event of Default” under this note:

3

(i) failure of the Company to pay any principal, interest or other amount due hereunder when due, or the Company shall in any way fail to comply with the other terms, covenants or conditions contained in this note;

(ii) a default or event of default shall have occurred under any other contract or agreement now or hereafter entered into between the Company and the Lender or executed by the Company in favor of the Lender;

(iii) a final judgment or order for the payment of money, or any final order granting equitable relief, shall be entered against the Company and such judgment or order has or will have a materially adverse effect on the financial condition of the Company;

(iv) a warrant, writ of attachment, levy or other similar process shall be issued against any property of the Company;

(v) the Company shall (1) commence a voluntary case under the Bankruptcy Code of 1978, as amended or other federal bankruptcy law (as now or hereafter in effect); (2) file a petition seeking to take advantage of any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or composition for adjustment of debts; (3) consent to or fail to contest in a timely and appropriate manner any petition filed against it in an involuntary case under such bankruptcy laws or other laws; (4) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign; (e) be unable to, or admit in writing its inability to, pay its debts as they become due; (f) make a general assignment for the benefit of creditors; or (5) make a conveyance fraudulent as to creditors under any state, federal or foreign law; or

(vi) a case or other proceeding shall be commenced against the Company in any court of competent jurisdiction seeking (1) relief under the Bankruptcy Code of 1978, as amended or other federal bankruptcy law (as now or hereafter in effect) or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts or (2) the appointment of a trustee, receiver, custodian, liquidator or the like for the Company or all or any substantial part of the assets, domestic or foreign, of the Company, and such case or other proceeding is not dismissed within sixty (60) days after its commencement.

(b) Remedies.

(i) Upon the occurrence of an Event of Default (other than an Event of Default described in Section 6(a)(v) or Section 6(a)(vi), the Loan and the other obligations of Company hereunder, at the option of the Lender, and without demand or notice of any kind, may be immediately declared, and thereupon shall immediately become in default and due and payable and the Lender may exercise any and all rights and remedies available to it at law, in equity or otherwise.

(ii) Upon the occurrence of an Event of Default described in Section 6(a)(v) or Section 6(a)(vi), the Loan and the other obligations of the Company hereunder, without demand or notice of any kind, shall immediately become in default and due and payable and the Lender may exercise any and all rights and remedies available to it at law, in equity or otherwise.

(c) Costs of Collection. The Company shall pay all reasonable expenses incurred by the Lender in the collection of this note, including, without limitation, the reasonable fees and disbursements of legal counsel to the Lender.

4

9. Miscellaneous.

(a) Waivers.

(i) Trial by Jury. THE COMPANY AND THE LENDER, BY ACCEPTING THIS NOTE, EACH ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN COMPANY AND LENDER WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT. ACCORDINGLY, THE LENDER AND THE COMPANY HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST THE COMPANY ARISING OUT OF THIS NOTE OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN THE COMPANY AND THE LENDER OF ANY KIND OR NATURE.

(ii) Jurisdiction and Venue. THE COMPANY AND THE LENDER, BY ACCEPTING THIS NOTE, HEREBY AGREE THAT ANY FEDERAL COURT OR ANY STATE COURT LOCATED IN THE STATE OF NEW YORK SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN COMPANY AND LENDER PERTAINING DIRECTLY OR INDIRECTLY TO THIS NOTE OR ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN COMPANY AND LENDER OF ANY KIND OR NATURE. COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS, HEREBY WAIVING PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN, AND AGREEING THAT SERVICE OF SUCH SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED ADDRESSED TO THE COMPANY AT THE ADDRESS SET FORTH HEREIN. SHOULD THE COMPANY FAIL TO APPEAR OR ANSWER ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THIRTY DAYS AFTER THE MAILING THEREOF, IT SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY LENDER OR THE ENFORCEMENT BY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION. FURTHER, COMPANY HEREBY WAIVES THE RIGHT TO ASSERT THE DEFENSE OF FORUM NON CONVENIENS AND THE RIGHT TO CHALLENGE THE VENUE OF ANY COURT PROCEEDING.

THE COMPANY AGREES THAT ALL OF THEIR PAYMENT OBLIGATIONS HEREUNDER SHALL BE ABSOLUTE, UNCONDITIONAL AND, FOR THE PURPOSES OF MAKING PAYMENTS HEREUNDER, COMPANY HEREBY WAIVES ANY RIGHT TO ASSERT ANY SETOFF, COUNTERCLAIM OR CROSS-CLAIM.

THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF.

No delay or failure on the part of the Lender in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Lender of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. No modification or waiver of any provision of this note or consent to departure therefrom shall be effective unless in writing and signed by the Company and the Lender.

5

(b) Binding Agreement; Assignment. The terms and conditions of this note shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties. Nothing in this note, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Note, except as expressly provided in this note. This Note may not be assigned by any party hereto without the prior written consent of all other parties hereto; provided, however, that Lender may assign this note with written notice to the Company.

(c) Governing Law. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND NO CONFLICTS OF LAW PRINCIPLES WILL APPLY TO THIS NOTE.

(d) Titles and Subtitles. The titles and subtitles used in this note are used for convenience only and are not to be considered in construing or interpreting this note.

(e) Notices. Any notice to be given hereunder shall be in writing, and shall be sent to Lender or Company, as the case may be, at the addresses set forth herein and shall be deemed received (i) on the earlier of the date of receipt or the date three (3) business days after deposit of such notice in the United States mail, if sent postage prepaid, certified mail, return receipt requested, (ii) one (1) business day after dispatch if sent for overnight delivery by a nationally recognized overnight courier, or (iii) when actually received, if personally delivered.

(f) Counterparts. This note may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. For the purposes of executing this note, (i) a document signed and transmitted by facsimile, telecopier, email or other electronic transmission shall be treated as an original document; (ii) the signature of any party on such document shall be considered as an original signature; (iii) the document transmitted shall have the same effect as a counterpart thereof containing original signatures; and (iv) at the request of the Lender, the Company shall provide an original signature to Lender. No party may raise as a defense to the enforcement of this note that a facsimile, telecopier, email or other electronic transmission was used to transmit any signature of a party to this note.

(g) Severability. It is the desire and intent of the parties that the provisions of this note be enforced to the fullest extent permissible under the law and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, in the event that any provision of this note would be held in any jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this note or affecting the validity or enforceability of such provision in any jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this note or affecting the validity or enforceability of such provision in any other jurisdiction.

* * *

6

SIGNATURE PAGE TO CONVERTIBLE PROMISSORY NOTE

IN WITNESS WHEREOF, the undersigned have executed this Note as of the date first written above.

b. [COMPANY] THE RESEARCH FOUNDATION FOR

THE STATE UNIVERSITY OF NEW YORK

By: ______________________________ By: _____________________________[NAME, TITLE] [NAME, TITLE]

Date: __________________ Date: __________________

14723161.1

SCHEDULE 2:

OPTION RIGHTS

Upon written request from Foundation, and without the payment or provision of any additional consideration by Foundation, Licensee will issue to Foundation such number of shares of common stock of Licensee as will cause Foundation to own shares of common stock representing at least <<number>> percent (<<#>>%) of the outstanding shares of the capital stock of Licensee on a fully diluted basis through <<number>> U.S. dollars ($<<#>>) of cumulative third party equity financings of Licensee (the “Foundation Common Stock”). The Foundation Common Stock will be issued pursuant to Foundation’s standard equity documentation (which is attached to this Schedule 2) and will include a redemption right exercisable upon certain trigger events. The issuance of the Foundation Common Stock is authorized by Licensee’s organizational documents and shall be reserved by Licensee for issuance to Foundation as provided herein. Furthermore, if at any time the number of authorized common stock of Licensee shall not be sufficient to effect the rights of Foundation set forth herein, Licensee shall promptly take such action as is necessary to ensure that the requisite number of shares of Foundation Common Stock are available for issuance to Foundation as provided herein, including, without limitation, obtaining the requisite shareholder approval of any necessary amendments to Licensee’s organizational documents. Licensee shall pay any and all issue and other taxes that may be payable in respect of any issuance or delivery of the Foundation Common Stock. Licensee covenants and agrees that all Foundation Common Stock will, upon issuance, be validly issued and outstanding, fully paid and nonassessable, and free from all taxes, liens and charges with respect to the issuance thereof.

Licensee shall provide Foundation with at least fifteen (15) business days’ prior written notice of any proposed Sale or Merger (defined below); such written notice to contain the material terms of any such Sale or Merger, including the valuation of Licensee or the consideration receivable in such Sale or Merger. Licensee shall not consummate any Sale or Merger without the written consent of Foundation.

A “Sale or Merger” shall mean any of the following: (a) the merger or consolidation of Licensee into or with another entity in which the owners of Licensee immediately preceding such merger or consolidation (solely by virtue of their securities of Licensee) shall own less than fifty percent (50%) of the voting securities of the surviving entity; (b) the sale, transfer, license or lease, whether in a single transaction or pursuant to a series of related transactions or plan, of all or substantially all the assets of Licensee; (3) a sale or transfer of fifty percent (50%) or more of Licensee’s outstanding voting securities (whether through actual or beneficial ownership); or (4) an initial public offering of Licensee’s stock pursuant to an effective registration statement under the Securities Act of 1933.

[ATTACH FOUNDATION’S STANDARD EQUITY DOCUMENTATION]

SCHEDULE 3:

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

[GENERAL INSTRUCTIONS: Only use this agreement with an investment in membership interests of a limited liability

company where a Technology License Agreement is being executed and the limited liability company is being formed.

14723161.1

If the limited liability is already formed and has an operating agreement, that operating agreement should be conformed as closely as possible to the terms of this operating agreement.

Do not make changes to this form (other than as advised in this agreement) or agree to the terms of another operating agreement without contacting RF Office of General Counsel.

Do not circulate before deleting all instructions highlighted in yellow and all footnotes. Do fill in all blanks highlighted in yellow. Do check all section and article numbering throughout the document. Do complete Schedule A with all required information.

OPERATING AGREEMENT OF

[INSERT: Full name of limited liability company]

14723161.1

A NEW YORK LIMITED LIABILITY COMPANY

DATED [_____________], 20[__]

14723161.1

OPERATING AGREEMENT

This Operating Agreement of [INSERT: Full name of limited liability company] is effective as of the [____] day of [_____________], 20[__], by and among the Company each of the Persons signing this Operating Agreement as Members.

ARTICLE IBACKGROUND

[Tailor this section to reflect the actual background of the deal.]

A. Concurrently with the execution of this Operating Agreement, The Research Foundation of State University of New York, on behalf of [___________________], a New York nonprofit corporation (“Foundation”), is entering into an Technology License Agreement with the Company effective as of [____________], 20[__] (the “License Agreement”) under which Foundation is licensing to the Company certain technology owned by Foundation.

B. In partial consideration for the execution and delivery by Foundation of the License Agreement, the parties have agreed to enter into this Operating Agreement.

C. Concurrently with the execution of this Agreement, Foundation is entering into a Units Purchase Agreement with the Company effective as of [____________], 20[__] (the “Units Purchase Agreement”) under which, in partial consideration for the execution and delivery of the License Agreement by Foundation, the Company has agreed to issue to Foundation certain Class A Units.

D. NOW THEREFORE, in consideration of the agreements and mutual promises and covenants set forth in this Agreement, the parties, intending to be legally bound, agree as follows:

ARTICLE IIDEFINITIONS

As used in this Operating Agreement the following terms shall have the meanings indicated, other terms are defined elsewhere in this Operating Agreement:

“Adjusted Capital Account Deficit” shall mean, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant fiscal year, after giving effect to the following adjustments: (a) credit to such Capital Account any amounts which such Member is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the next to the last sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5) after taking into account any changes during such year in Company Minimum Gain and Member Minimum Gain; and (b) debit to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations. The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.

“Articles of Organization” shall mean the Articles of Organization of the Company filed with the Secretary of State of the State of New York pursuant to the New York L.L.C. Law.

“Board” shall mean the Board of Directors of the Company as described in Article IV, exercising their authority as managers under the L.L.C. Law in the manner set forth in this Agreement.

14723161.1

“Book Depreciation” shall mean the depreciation, cost recovery or amortization of assets allowable to the Company with respect to an asset for any period, except that if (a) with respect to any asset the Book Value of which differs from its adjusted tax basis for federal income tax purposes at the beginning of such period and which difference is being eliminated by use of the “remedial method” as defined by Section 1.704-3(d) of the Regulations, Book Depreciation for such period shall be the amount of book basis recovered for such period under the rules prescribed by Section 1.704-3(d)(2) of the Regulations, and (b) with respect to any other asset the Book Value of which differs from its adjusted basis for federal income tax purposes at the beginning of such period, Book Depreciation shall be an amount which bears the same ratio to such beginning Book Value as federal income tax depreciation, amortization, or other cost recovery deduction for such period bears to such beginning adjusted basis; provided, however, that in the case of clause (b) above, if the adjusted basis for federal income tax purposes of an asset at the beginning of such period is zero, Book Depreciation shall be determined with reference to such beginning Book Value using any reasonable depreciation method selected by the Board of Managers.

“Book Gain or Book Loss” shall mean the gain or loss that would be recognized by the Company for federal income tax purposes as a result of sales or exchanges of its assets if its tax basis in such assets were equal to the Book Value of such assets.

“Book Value” shall mean, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows and as adjusted in accordance with this Agreement:

(a) The initial Book Value of any asset contributed by a Member to the Company shall be the Agreed Value of such asset at the time of contribution;

(b) The Book Values of all Company assets shall be adjusted to equal their respective Agreed Values upon the liquidation of the Company within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations, or as appropriate or necessary in the determination of the Manager to ensure that the Capital Accounts of the Members properly reflect their respective economic interests;

(c) Except as otherwise provided in subparagraph (b), the Book Value of any item of Company assets distributed to any Member shall be adjusted to equal the Agreed Value (taking Code Section 7701(g) into account) of such asset on the date of distribution;

(d) The Book Value of any item of Company assets shall be adjusted to equal its Agreed Value on the date of the grant of an interest in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company by an existing Member acting in a Member capacity, or by a new Member acting in a Member capacity or in anticipation of becoming a Member; and

(e) The Book Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations and subparagraph (f) of the definition of “Net Income” and “Net Losses”; provided, however, that the Book Values shall not be adjusted pursuant to this subparagraph (e) to the extent that an adjustment pursuant to subparagraph (ii) is required in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (e).

- 2 -

14723161.1

(f) If the Book Value of an asset has been determined or adjusted pursuant to subparagraph (a), (b) or (d), such Book Value shall thereafter be adjusted by the book depreciation (pursuant to Section 1.704-1(b)(2)(iv)(g)(3) of the Regulations) taken into account with respect to such asset, for purposes of computing Net Income and Net Loss.

“Capital Account” shall mean the sum of the cash and the fair market value of any other property contributed by a Member, adjusted from time to time to reflect the Member’s share of any Net Income or Loss and any Distributions.

“Capital Contributions” shall mean the money contributed by a Member and the fair market value of any other property contributed by a Member in accordance with Section 2.06 hereof.

“Cash Available for Distribution” shall mean cash from operations, sale of assets, borrowings, or otherwise available for distribution to the Members as determined by the Board in good faith, from time to time considering the needs of the Company for operating capital, the net profits or loss and net cash flow projected to be generated from operations of the Company, the borrowing power of the Company, as well as any debt reductions which may be required to be made, the need to establish cash reserves for any contingencies and such other criteria as the Board may deem appropriate under the circumstances.

“Code” shall mean the Internal Revenue Code of 1986, as amended from time-to-time, and the corresponding regulations promulgated thereunder.

“Company” shall mean [_____________________], a New York limited liability company.

“Company Minimum Gain” shall have the meaning set forth in Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.

“Director” shall mean a manager (as defined in Section 102(p) of the L.L.C. Law) of the Company who is a member of the Board of Directors.

“Distribution” shall mean any transfer of money or other property to a Member, in his or her capacity as a Member, from the Company. For purposes of this Section, property is to be valued at its fair market value on the date of transfer.

“Fiscal Period” shall means from [January 1 to December 31] of each year or such portion thereof as the Company shall be in existence.

“L.L.C. Law” shall mean the New York Limited Liability Company Law, as amended from time to time.

“Member Minimum Gain” shall mean an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as Nonrecourse Debt, determined in accordance with Section 1.704-2(c)(i) of the Regulations.

“Member Nonrecourse Debt” shall have the meaning set forth in Section 1.704-2(b)(4) of the Regulations.

“Member Nonrecourse Debt Minimum Gain” shall mean an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if the Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Section 1.704-2(i)(3) of the Regulations.

- 3 -

14723161.1

“Member Nonrecourse Deductions” shall have the meaning set forth in Section 1.704-(2)(i)(2) of the Regulations.

“Members” shall mean the Persons listed as Members at the end of this Operating Agreement.

“Net Income” and “Net Losses” shall mean for any given fiscal year or other period, an amount equal to the Company’s taxable income or loss for such fiscal year, determined in accordance with Code Section 703(a) (and, for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(a) Any income of the Company that is exempt from federal income tax or otherwise taken into account in computing Net Income or Net Losses shall be added to taxable income or loss;

(b) Any expenditures of the Company described in Code Section )(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Section 1.704-)(iv)(i) of the Regulations, and not otherwise taken into account in computing Net Income or Net Losses, shall be subtracted from such taxable income or loss;

(c) In the event the Book Value of any Company asset is adjusted ant to the definition of Book Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income or Net Losses;

(d) Gain or loss resulting from any disposition of property with respect to gain or loss is recognized for federal income tax purposes shall be computed by reference Book Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Book Value;

(e) In lieu of the depreciation, amortization, and other cost recovery deduction taken into account in computing such taxable income or loss, there shall be taken into account book depreciation for such fiscal year or other period, computed in accordance with the capital account maintenance rules of Section 1.704-1(b)(2)(iv)(g)(3) of the Regulations; and

(f) To the extent an adjustment to the adjusted tax basis of any Company pursuant to Code Section 734(b) or Code Section 743(b) is required pursuant to Section 1.704-(1)(b)(2)(iv)(m) of the Regulations to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of Units, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition asset and shall be taken into account for purposes of computing Net Income or Net Losses.

“Nonrecourse Debt” shall have the meaning given to the term “nonrecourse liability” by Section 1.704-2(b)(3) of the Regulations.

“Nonrecourse Deductions” shall have the meaning set forth in Regulations Section 1.704-2(c).

“Operating Agreement” shall mean the operating agreement of the Company, as amended from time to time.

- 4 -

14723161.1

“Person” shall mean an individual, a corporation, a partnership, a limited liability company or partnership, a trust, an unincorporated organization or a government or any agency or political subdivision thereof.

“Pro Rata Share” shall mean a fraction, the numerator of which shall be the number of Units held by a Member and the denominator of which shall be the total number of Units held by all Members. “Pro Rata Share” with respect to any class of Units shall mean a fraction, the numerator of which shall be the number of such class of Units held by a Member and the denominator of which shall be the total number of such class of Units held by all Members.

“Regulations” shall mean the Treasury Regulations promulgated under the Code, as from time to time in effect.

“Tax Distribution” shall mean, with respect to each Member, an amount equal to (a) the amount by which the net profit (other than income and gain referred to in Section 3.01(c)) allocated to such Member for the most recently completed calendar quarter exceeds the cumulative net loss (if any) allocated to such Member since the inception of the Company multiplied by (ii) 40.0%.

“Unit” shall mean the membership interest of the Members in the Company, divided into Units, as set forth on Schedule A attached hereto.

The following terms have the meaning defined in the corresponding section identified in the chart below.

Term Section

[“Additional Issuance”] [2.05(d)]

“Co-Sale Exercised Units Amount” 6.03(c)

“Co-Sale Unsold Units Amount” 6.03(c)

“Co-Sale Notice” 6.03(a)

“Covered Person” 9.14

“Excess Amount” 6.02(c)

“Exercised Units” 6.02(d)

“Family Member” 6.01(b)

“Foundation” Background

“Interest Certificate” 2.05(c)

“License Agreement” Background

“Majority Member” 6.04(a)

“Maximum Amount” 6.02(c)

- 5 -

14723161.1

“Minimum Amount” 6.02(c)

“Notice of Acceptance” 6.02(d)

“Offered Units” 6.02(a)

“Offeree Members” 6.02(c)

“Participant” 6.03(b)

“Regulatory Allocations” 3.01(d)

“Remaining Offered Units” 6.02(c)

“ROFR Share” 6.02(c)

“Sale Notice” 6.02(a)

“Selling Member” 6.02(a)

“SUNY” 6.01(b)

“Tag-Along Acceptance Notice” 6.04(b)

“Tag-Along Notice” 6.04(b)

“Tag-Along Members” 6.04(a)

“Tag-Along Right” 6.04(a)

“Tag-Along Transaction” 6.04(a)

“Transfer” 6.01(a)

“Unit Purchase Agreement” Background

ARTICLE IIIORGANIZATION

Section III.01Name

. The name of the Company is [___________________].

Section III.02Purposes

- 6 -

14723161.1

. The purpose for which the Company has been formed is to engage in (a) [INSERT: Description of the Company’s business], and (b) any lawful act or activity necessary or incidental to the foregoing for which limited liability companies may be formed under the L.L.C. Law.

Section III.03Principal Office

. The principal office of the Company shall be located at [INSERT: Address of the Company’s office] or at such other place as may be designated by written notice from the Board to the Members. The Company may have such additional place or places of business as the Board may from time to time deem advisable.

Section III.04Term

. The Company was formed on the day on which the Articles of Organization was filed with the Secretary of State of the State of New York and shall continue, unless sooner dissolved in accordance with the terms of this Operating Agreement or the laws of the State of New York.

Section III.05Units

.

(a) Issuance of Units . The Company may issue Units, as, when and for such consideration, and possessing such rights and on such terms and conditions, as determined by the Board with any such approval of the Members as set forth herein. Units shall be either Class A Units or Class B Units, provided that the Board may authorize the issuance of other types or series of Units, according to the terms hereof.

(b) Class A Units . Class A Units shall be issued only to the Foundation (or any of its assignee) and to no other Person.

(c) Unit Certificates . The Company hereby irrevocably elects that all Units shall be securities governed by Article 8 of the Uniform Commercial Code as in effect on the date hereof in the State of New York and as in effect in any other applicable jurisdiction that presently or hereafter has a law that is substantially similar to such Article 8. Each Member shall be issued a certificate or certificates to evidence its interests in the Company (each, an “Interest Certificate”). All Interest Certificates shall be signed in the name of the Company by the Director or officer certifying the interests owned by the Member. Any or all of the signatures on an Interest Certificate may be by facsimile or electronic signature. Each certificate representing Units shall be endorsed with the following legend:

THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO, AND IN CERTAIN CASES PROHIBITED BY, THE TERMS AND CONDITIONS OF THE COMPANY’S OPERATING AGREEMENT. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.

(d) [NOTE: The following clauses should be used if the Foundation gets Anti-Dilution Rights or Preemptive Rights. The Foundation should get one or the other. Anti-Dilution can be addressed in different ways, but the provision below is the most favorable to the Foundation.]

- 7 -

14723161.1

Anti-Dilution. At any time during the term of the Company, should the Company issue any Units or other equity securities (including derivative securities) (an “Additional Issuance”) contemporaneously with any such Additional Issuance the Company shall issue to the holders of Class A Units, a number of Class A Units sufficient to assure that each such holder will have the same Pro Rata Share immediately following the Additional Issuance that such holder had immediately prior to the Additional Issuance. In the event that any holder of Class A Units participates in any Additional Issuance as an investor, the issuance contemplated by this Section 2.05(e) shall be in addition to any issuances to such holder made in connection with the subject transaction.

Preemptive Rights. Should the Company desire to issue additional Units it shall first give written notice to each holder of Class A Units of the same, including the terms and conditions (including the per Unit price) to be paid by the person to whom such additional Units are to be issued. For a period of thirty (30) calendar days after delivery of such notice by the Company to each holder of Class A Units, each holder of Class A Units shall have the right (exercisable upon written notice delivered to the Company within such thirty (30) calendar day period) to purchase such additional Units in an amount sufficient to ensure that each holder of Class A Units will have the same Pro Rata Share immediately following the issuance of any additional Units that such holder of Class A Units had immediately prior to the issuance of such additional Units. The terms and conditions of any such purchase by a holder of Class A Units (including the per Unit price) shall be equal to the terms and conditions (including the per Unit price) to be paid by the person to whom such additional Units are to be issued.

Section III.06Capital Contributions

.

(a) Each Member has contributed money or property to the Company in exchange for the number of Units set forth opposite such Member’s name as set forth on Schedule A attached hereto.

(b) No Member shall be entitled to the return of all or any part of his or her Capital Contribution, prior to the partial or total liquidation of the Company. Any return of Capital Contributions to the Members shall be solely from Company assets, and no Member shall have any liability for any such return.

(c) Except as otherwise specifically provided in the Operating Agreement, no Member shall have the right to withdraw or reduce his or her Capital Contribution or to demand and receive property other than cash from the Company in return for his or her Capital Contribution or as a Distribution.

(d) No Capital Contribution to the Company shall bear interest.

(e) No Member shall have any right of partition or similar right with respect to property owned by the Company or to institute a claim for judicial dissolution of the Company, and each Member hereby waives any such right.

(f) No Member shall be obligated to make loans to the Company or to repay any deficit in his or her Capital Account.

ARTICLE IVALLOCATIONS AND DISTRIBUTIONS

- 8 -

14723161.1

Section IV.01Allocation

.

(a) Allocations – Overview . The rules set forth below in this Section 3.01 shall apply for the purposes of determining each Member’s allocable share of the items of income, gain, loss and expense of the Company comprising Net Income or Net Loss of the Company for each Fiscal Period, determining special allocations of other items of income, gain, loss and expense, and adjusting the balance of each Member’s Capital Account to reflect the aforementioned general and special allocations. For each Fiscal Period, the special allocations in Section 3.01(c) shall be made immediately prior to the general allocations of Section 3.01(b).

(b) General Allocations .

(i) The items of income, gain, loss and expense of the Company comprising Net Income or Net Loss for a Fiscal Period shall be allocated among the persons who were Members during such Fiscal Period in a manner that will, as nearly as possible, cause the Capital Account balance of each Member at the end of such Fiscal Period to equal the excess (which may be negative) of:

(1) the amount of the hypothetical distribution (if any) that such Member would receive if, on the last day of the Fiscal Period, (x) all Company assets, including cash were sold for cash in an amount equal to their Book Value, taking into account any adjustments thereto for such Fiscal Period, (y) all Company liabilities were satisfied in cash according to their terms (limited, with respect to each Nonrecourse Debt or Member Nonrecourse Debt in respect of such Member, to the Book Value of the assets securing such liability), and (z) the net proceeds thereof (after satisfaction of such liabilities) were distributed in full pursuant to Section 7.02, as applicable, over

(2) the sum of (x) the amount, if any, without duplication, that such Member would be obligated to contribute to the capital of the Company, (y) such Member’s share of Company Minimum Gain determined pursuant to Regulations Section 1.704-2(g) and (z) such Member’s share of Member Nonrecourse Debt Minimum Gain determined pursuant to Section 1.704-2(i)(5) of the Regulations, all computed as of the hypothetical sale described in Section 3.01(b)(i)(1) above.

(ii) Notwithstanding anything to the contrary in this Section 3.01(b), the amount of items of Company expense and loss allocated pursuant to this Section 3.01(b) to any Member shall not exceed the maximum amount of such items that can be so allocated without causing such Member to have an Adjusted Capital Account Deficit at the end of any Fiscal Period, unless each Member would have an Adjusted Capital Account Deficit. All such items in excess of the limitation set forth in this Section 3.01(b)(ii) shall be allocated first, to Members who would not have an Adjusted Capital Account Deficit, pro rata, in proportion to their Capital Account balances, adjusted as provided in clauses (i) and (ii) of the definition of Adjusted Capital Account Deficit, until no Member would be entitled to any further allocation, and thereafter, to all Members, pro rata, in proportion to their Pro Rata Share.

(c) Special Allocations . The following special allocations shall be made in the following order:

(i) Company Minimum Gain Chargeback. Notwithstanding any other provision of this Section 3.01, if there is a net decrease in Company Minimum Gain during any Fiscal Period, each Member shall be specially allocated items of Company income and gain for such Fiscal Period (and, if necessary, subsequent Fiscal Periods) in proportion to, and to the extent of, an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Section 1.704-(2)(g)(2) of

- 9 -

14723161.1

the Regulations. The items to be so allocated shall be determined in accordance with Section 1.704-2(f) of the Regulations. This Section 3.01(c)(i) is intended to comply with the minimum gain chargeback requirement of the Regulations and shall be interpreted consistently therewith.

(ii) Member Minimum Gain Chargeback. Notwithstanding any other provision of this Section 3.01 except Section 3.01(c)(i), if there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal Period, each Member with a share of the Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of the Regulations, shall be specially allocated items of Company income and gain for such Fiscal Period (and, if necessary, subsequent Fiscal Periods) in proportion to, and to the extent of, an amount equal to such Member’s share of the net decrease in Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(4) of the Regulations. The items to be so allocated shall be determined in accordance with Section 1.704-2(i)(5) of the Regulations. This Section 3.01(c)(ii) is intended to comply with the Member minimum gain chargeback requirement of the Regulations and shall be interpreted consistently therewith.

(iii) Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Regulations, items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this Section 3.01(c)(iii)shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Section 3.01 have been tentatively made as if this Section 3.01(c)(iii) were not in the Agreement.

(iv) Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Fiscal Period which is in excess of the sum of (1) the amount such Member is obligated to restore pursuant to any provision of this Agreement, and (ii) the amount such Member is deemed to be obligated to restore pursuant to Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 3.01(c)(iv) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Section 3.01 have been tentatively made as if this Section 3.01(c)(iv) and Section 3.01(c)(iii) hereof were not in the Agreement.

(v) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Period or other period shall be specially allocated to the Members in accordance with each Member’s Pro Rata Share.

(vi) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Fiscal Period or other period shall be allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Section 1.704-2(i) of the Regulations.

(vii) Other. To the extent an adjustment to the adjusted tax basis of any Company asset, pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4) of the Regulations, to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of such Member’s Units, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Members in accordance with their Pro Rate Share in the event Section

- 10 -

14723161.1

1.704-1(b)(2)(iv)(m)(2) of the Regulations applies, or to the Member to whom such distribution was made in the event Section 1.704-1(b)(2)(iv)(m)(4) of the Regulations applies.

(d) Curative Allocations . The “Regulatory Allocations” consist of the allocations to a Member (or its predecessor) under Sections 3.01(c)(i) – (vi) hereof. Notwithstanding any other provisions of this Article III (other than the Regulatory Allocations), the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Members so that, to the extent possible, the net amount of such allocations of other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred. The Board shall have reasonable discretion, with respect to each Fiscal Period, to (1) apply the provisions of this Section 3.01(d) in whatever order is likely to minimize the economic distortions that might otherwise result from the Regulatory Allocations, and (2) divide all allocations pursuant to this Section 3.01(d) among the Members in a manner that is likely to minimize such economic distortions.

(e) Tax Allocations; Code Section 704(c) . In accordance with Code Section 704(c) and the Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its Book Value. In the event the Book Value of any Company asset is adjusted pursuant to subparagraph (ii) of the definition of Book Value, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for Federal income tax purposes and its Book Value in the same manner as under Code Section 704(c) and the Regulations thereunder. Any elections or other decisions relating to such allocations shall be made by the Board in any manner that reasonably reflects the intent of this Agreement. Allocations pursuant to this Section 3.01(e) are solely for purposes of federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any person’s Capital Account or share of Net Income, Net Losses, other items, or distributions pursuant to any provision of this Agreement.

(f) Additional Members . If additional Members are admitted to the Company on different dates during any Fiscal Period, the Net Income (or Net Losses) allocated to the Members for each Fiscal Period shall be allocated among them in accordance with the interests each holds in the Company from time to time in accordance with Code Section 706, using any convention permitted by law and selected by the Board.

(g) Allocations Relating to Taxable Issuance of Units . Any income, gain, loss or deduction realized as a direct or indirect result of the issuance of an interest by the Company to a Member shall be allocated among the Members so that, to the extent possible, the net amount of such items, together with all other allocations under this Agreement to each Member, shall be equal to the net amount that would have been allocated to each such Member if such items had not been realized.

Section IV.02Distributions

.

(a) General . From time to time as determined at the discretion of the Board, the Company shall distribute to the Members any Cash Available for Distribution to and among the Members in proportion to their Pro Rata Share.

- 11 -

14723161.1

(b) Tax Distributions . In addition to Section 3.02(a), a Tax Distribution shall be distributed to each Member quarterly on or as soon as possible after each April 1, July 1, October 1 and January 1 during the term of the Company. Distributions to a Member made under this Section 3.02(b) shall be treated as advance payments of, and shall reduce, payments otherwise distributable to such Member pursuant to this Agreement. Any distributions made to a Member pursuant to this Section 3.02(b) and not recovered against other distributions payable to such Member shall constitute a debt of such Member to the Company payable upon dissolution of the Company or such earlier time as the Member ceases to be a Member.

ARTICLE VMANAGEMENT

Section V.01 Management by Members

. Except as authorized by the Board in accordance with this Agreement or as explicitly set forth in this Agreement, no Member (in his, her or its capacity as such) shall take part in the day to day management, or the operation or control, of the business and affairs of the Company. Except and only to the extent expressly delegated by the Board or specified in this Agreement, no Member shall be an agent of the Company or have any right, power or authority to transact any business in the name of the Company or to act for or on behalf of or to bind the Company. Nothing in this Section 4.01, however, is intended to restrict a Director or officer of the Company who is also a Member in the exercise of his or her power or authority as a Director or officer of the Company.

Section V.02 Board of Directors

. The Board, consisting of one (1) or more Directors, shall be elected by the Members holding Class B Units as set forth in Section 5.01(c). The business and affairs of the Company shall be managed by or under the direction of the Board, in the manner of managers as set forth in the L.L.C. Law.

[NOTE: Consider whether the Foundation desires to have observation rights]

Section V.03 Powers and Authority of the Board

. Except where approval of the Members is expressly required by nonwaivable provisions of applicable law or as otherwise specifically provided in this Agreement, the Board shall have full, exclusive and complete discretion to direct and control the business and affairs of the Company, to make all decisions affecting the business and affairs of the Company and to take all such actions as it deems necessary or appropriate to accomplish the foregoing and the purposes of the Company as set forth herein. The Board may delegate any of its powers, in whole or in part, to any officer or officers of the Company.

Section V.04 Meetings; Quorum

(a) . (a) Meetings of the Board shall be held at least quarterly. Meetings may be called by order of the President or any Director. Notice of the time and place of each meeting shall be given by or at the direction of the Person or Persons calling the meeting by mailing the same at least twelve (12) business days before the meeting, or by sending the same by nationally recognized overnight courier service at least ten (10) business days before the meeting, or by telephoning, telecopying, e-mailing or delivering personally the same at least ten (10) business days before the meeting to each Director; provided, however, that notice of any special meeting of the Board may be given by nationally recognized overnight courier service, or by telephoning, telecopying, e-mailing (in each case confirmed on the same day by nationally or internationally, as appropriate, recognized courier service) or delivering personally the same,

- 12 -

14723161.1

at least three (3) Business Days before the meeting to each Director. Except as otherwise specified in the notice thereof, or as required by the L.L.C. Law, the Articles of Organization or this Agreement, any and all business may be transacted at any meeting.

(b) At any meeting of the Board, the presence in person or by proxy of a least a majority of all Directors shall constitute a quorum for the transaction of any business. In the absence of a quorum those Directors present may adjourn the meeting to a specified date (which shall not be less than seventy two (72) hours after the date of the originally scheduled meeting). If a quorum is lacking at the adjourned meeting, that meeting may again be adjourned to a specified date (which shall not be less than seventy two (72) hours after the date of the first adjourned meeting). Notice of an adjourned meeting shall be given in the manner specified in Section 4.04(a), except that (i) such notice need not be delivered more than seventy two (72) hours prior to the adjourned meeting, and (ii) notice of a second adjourned meeting shall be accompanied by a meeting agenda describing in general terms the matters to be discussed and approved at the meeting. At any adjourned meeting at which the requisite quorum is present any action may be taken which might have been taken at the meeting as originally called.

(c) The secretary of each meeting of the Board shall record the deliberations and determinations of the Board in written minutes which will be circulated by the secretary to the Directors after the meeting for their review and approval at or before the next meeting of the Board.

Section V.05 Organization

. Every meeting of the Board shall be presided over by the Chairman of the Board who shall be appointed by the Members, or, in the absence of the Chairman, by such Director as shall be selected by the majority of the Directors present at the meeting. The Chairman, or the presiding Director, as the case may be, shall select a Person (who need not be a Director) to act as the secretary of the meeting. The President, if he or she is not a Director, shall be entitled to be present at all Board sessions, except as to matters affecting his or her employment, compensation or performance.

Section V.06 Vote

. At any meeting of the Board, each Director shall be entitled to one (1) vote on any matter presented to the Board. Unless otherwise set forth herein, the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board.

Section V.07 Action Without Meeting; Telephone Meetings

. Unless otherwise restricted by the Articles of Organization or this Agreement, any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if consented to in writing by all Directors. Any one or more Directors, and the President of the Company shall be entitled to participate in a meeting of the Board by means of a conference telephone or similar communications equipment allowing all Persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.

Section V.08 Vacancies and Removal

. Any Director may be removed at any time, with or without cause, by the Members. Any vacancy occurring in the Board due to the death, resignation, incapacity, or removal, with or without cause, of a Director shall be filled by the Members.

- 13 -

14723161.1

Section V.09 Committees

. The Board, by unanimous vote of all Directors, may designate committees of one or more individuals, which shall serve at the Board’s pleasure and have such powers and duties as the Board determines and as provided by this Agreement. Individuals designated by the Board to serve on any such committee are not required to be Directors, and the Board may designate by its own action as required pursuant to this Agreement committees comprised entirely of individuals who are not Affiliates of either Member and independent from both Members and the Board.

Section V.10 Compensation of Directors

. No Director shall receive from the Company a salary or other compensation for services as a Director nor be entitled to reimbursement by the Company for expenses incurred in connection with the business of the Company, other than as set forth in and in accordance with the Company’s expense reimbursement policy.

Section V.11 Status and Duties of Directors

.

(a) Each Director shall be a “manager” for purposes of the L.L.C. Law, entitled to all rights, privileges and protections of a “manager” thereunder, provided however, that no Director shall, absent specific delegation or authorization by the Board, have the right or responsibility, acting individually, to manage the business or affairs of the Company or otherwise to act for or bind the Company as an agent, but may only act collectively through actions or determinations of the Board taken in accordance with the provisions of this Agreement.

(b) Each Director shall perform his or her duties as a Director in the manner set forth in Section 409 of the L.L.C. Law. In performing his or her duties, a Director shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by (i) one or more agents or employees of the Company, or (ii) counsel, public accountants or other Persons as to matters that such Director believes to be within such Person’s professional or expert competence.

Section V.12 Limitations on Liability

. No Director shall be liable for any debt, obligation or liability of the Company, except as provided by law or as specifically provided otherwise herein. No Director shall be required to lend money to the Company or make any Capital Contribution to the Company in his or her capacity as a Director.

Section V.13 Directors and Officers Liability Insurance

. The Company may, upon the unanimous approval of the Board and approval of the Members, purchase and maintain insurance for the benefit of any Covered Person who is entitled or permitted to receive indemnification under Section 9.15, against any liability asserted against or incurred by such Covered Person in any capacity or arising out of such Covered Person’s service with the Company.

Section V.14 Officers

- 14 -

14723161.1

. The Board may elect a President and may elect such other officers of the Company, including a Chief Operating Officer, Chief Financial Officer, Secretary and Treasurer and such other or additional officers (including one or more Vice-Presidents (of such special rank and designation as the Board may specify), Assistant Secretaries and Assistant Treasurers) as the Board deems necessary or appropriate. The following individuals shall hold the office adjacent to their name until the earlier of their resignation or removal or until their replacement had been duly elected and qualified:

[_______________] President

[_______________] Vice President

[_______________] Secretary

[_______________] Treasurer

Section V.15 Term of Office; Removal and Vacancy

. Each officer shall hold office until his or her resignation or removal. Any officer or agent shall be subject to removal with or without cause at any time by the Board. Vacancies in any office, whether occurring by death, resignation, removal or otherwise, may be filled by the Board.

Section V.16 Powers and Duties of Officers

. The President shall be the principal executive officer of the Company and shall in general supervise and have active management of all of the day-to-day business and affairs of the Company, unless otherwise directed by the Board of Directors or provided by this Agreement. The President shall report directly to the Board and shall see that all orders and resolutions of the Board are carried into effect. The President shall be the final arbiter of all differences among officers of the Company and his or her decision as to any matter affecting the Company shall be final and binding as between or among officers of the Company, subject only to the authority of the Board.

ARTICLE VIMEETINGS OF MEMBERS AND VOTING

Section VI.01Voting by Members

.

(a) Whenever any vote or action is required to be taken by the Members holding any particular class of Units under the Operating Agreement, such vote or action shall be taken (i) at a meeting of the Members entitled to vote or act thereon called and held in accordance with this Article V, or (ii) by the Members entitled to vote or act thereon in accordance with the procedures set forth in Section 5.07 hereof.

(b) Except as otherwise provided by this Operating Agreement, by statute, or by the Articles of Organization of the Company, all action taken by the Members (including Members holding any class of Units) shall be authorized by the vote of those Members holding a majority of all issued and outstanding Units (including of any class) entitled to vote.

(c) Directors shall be elected and removed by the vote of those Members holding a majority of the Class B Units.

- 15 -

14723161.1

(d) The Company may not take any of the following actions unless approved by Members holding a majority of the Class A Units:

(i) any amendment of the Articles of Organization,

(ii) any amendment to this Operating Agreement that would change or eliminate Section 2.02 (Purpose), Section 2.05(b) (Class A Units), Section 2.05(d) ([Anti-Dilution][Preemptive Rights]), Section 3.2 (Distributions), Section 4.10 (Compensation of Directors), Section 4.11 (Status and Duties of Directors), Section 5.01(e) (Voting of Members), Section 7.02 (Winding up the Company), or Article VI (Transfer of Units) or Article IX (General),

(iii) the issuance of any Units or rights therein (including derivative securities) or the creation of any bonus payment or plan based upon the value of the Units, such as what is commonly referred to as a “phantom rights plans” or “unit appreciation plan”, in each case which would have preference in payment of distributions to Members holding Class A Units,

(iv) the purchase or redemption of any Units (including pursuant to Section 6.02(b) (Right of First Refusal)),

(v) any merger, conversion, consolidation, share exchange or other business combination,

(vi) any (1) voluntary dissolution (including pursuant to Article VII) or liquidation, (2) filing of a petition in bankruptcy, (3) appointment of a receiver, or (4) assignment for the benefit of creditors of the Company,

(vii) paying or making any dividend or distribution to any Member other than as expressly provided in this Agreement,

(viii) any change in accounting or tax policies, other than changes required by United States generally accepted accounting practices, including any change or revocation of the Company’s entity classification election under the Code, or any similar provision enacted in lieu thereof, or any corresponding provision of state tax laws,

(ix) incurring any debt on behalf of the Company, other than payments for (1) goods delivered and services rendered to the Company in the ordinary course of business, and (2) credit facilities for operating capital from a commercial bank, and

(x) any matter that would cause the holders of Class A Units to be liable for any debt or liability of the Company.

Section VI.02Meetings of Members

.

(a) An annual meeting of the Members may be held in such month of each year, as determined by the Board, if called by any Member or by a Director for the purpose of reviewing the business of the Company with the Members and for the transaction of such other business as may come before the meeting. If no annual meetings are called, the Members need not hold annual meetings. Special meetings of the Members, for any purpose or purposes, may be called from time to time by the Board.

- 16 -

14723161.1

(b) When assembled at an annual meeting, the Members may vote or act upon any matter with respect to which they are entitled to vote or act under the terms of this Operating Agreement or under the L.L.C. Law to the extent consistent with this Operating Agreement. When assembled at a special meeting, the Members may vote or act upon any matter described in the immediately preceding sentence which was set forth in the notice calling the meeting or notice of which was or is thereafter waived in accordance with this Operating Agreement.

(c) Members may participate in any meeting by means of conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear each other. Such participation shall constitute presence in person at the meeting.

Section VI.03Place of Meeting

. The Board may designate any place, either within or without the State of New York, as the place of the meeting for any annual or special meeting of Members; provided, however, that if any Member objects to such location, the meeting shall be held at the principal offices of the Company.

Section VI.04Notice of Meeting

.

(a) When calling a meeting the Board shall cause a written or printed notice of such meeting to be given to each Member of record entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. Such notice shall state (i) the place, date and hour of the meeting, (ii) that it is being issued by or at the direction of the Person calling the meeting and, (iii) in the case of a special meeting, the purpose or purposes for which the meeting is called.

(b) Notwithstanding paragraph (a) hereof, notice of meeting need not be given to any Member who submits a signed waiver of notice, in person or by proxy. The attendance of a Member at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice of such meeting by such Member.

Section VI.05Quorum

. The Members holding a majority of all issued and outstanding Units entitled to vote shall constitute a quorum at a meeting of Members for the transaction of any business, provided that if such business involves any matter set forth in Section 5.01(d), in order to constitute a quorum the Members holding at least a majority of the Class A Units shall also be required to be in attendance. If such Members are not present at a meeting, the Members present may adjourn the meeting despite the absence of a quorum.

Section VI.06Proxies

. At all meetings of Members, a Member may vote by proxy executed in writing by the Member or by his or her duly authorized attorney-in-fact. In order to be effective, such proxy shall (a) be signed in the exact name of the Member on record with the Company, and (b) be filed with the Board before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy.

Section VI.07Action by Members Without a Meeting

- 17 -

14723161.1

.

(a) Any action required or permitted to be taken by vote at a meeting of the Members (including Members holding any class of Units) may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken shall be signed by the Members who hold the voting interests having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all of the Members entitled to vote therein were present and voted and shall be delivered to the principal office of the Company or to the Board.

(b) Every written consent shall bear the date and signature of each Member who signs the consent, and no such consent shall be effective to take the action referred to therein unless within sixty (60) days of the earliest date a consent is delivered in the manner described in paragraph (a) of this Section 5.07, written consents signed by a sufficient number of Members to take the action are similarly delivered to the Company.

(c) Prompt notice of the taking of the action without a meeting by less than unanimous written consent shall be given to those Members who have not consented in writing but who would have been entitled to vote thereon had such action been taken at a meeting.

ARTICLE VIITRANSFER OF UNITS INTERESTS

Section VII.01 Assignment or Transfer of Units

.

(a) General Restriction . Except as expressly permitted by this Operating Agreement, no Member shall sell, transfer, assign, give, bequeath, hypothecate, pledge, create a security interest in, or lien on, encumber, place in trust (voting or other) or otherwise dispose of all or any portion of the Units, or any interest therein, now owned or hereafter acquired, held or controlled by such Member, whether voluntarily or through any bankruptcy or other insolvency proceedings, adjudication of insanity, death or otherwise, and intending to apply to transfers of any and every nature, kind and description including without limitation any withdraw from the Company or petition for judicial dissolution of the Company (sometimes herein referred to as a “Transfer”), unless and until each of the terms and conditions of this Agreement shall have been met. The Company shall not cause or permit the transfer of any Units to be made on its books unless the transfer is permitted by this Agreement, and has been made in accordance with its terms. Any Transfer that does not comply with this Article VI is void.

(b) Permitted Transfers . The restrictions set forth in this Article VI shall not apply to the following Transfers of Units:

(i) gifts, bequests or transfers by any individual Members, either during his or her lifetime or on death by will or intestacy, to his or her spouse, siblings, lineal antecedents or descendants, children or grandchildren (natural or adopted) or nieces or nephews (natural or adopted) (collectively, “Family Members”), (ii) trusts for the benefit of the Member or any Family Member, or (iii) entities controlled by the Members or any Family Member; and

(ii) in the case of transfers by Foundation, transfers by Foundation to the State University of New York (“SUNY”) and any employee or former employee of Foundation or SUNY,

- 18 -

14723161.1

and any institution that is a party to an inter-institutional agreement with Foundation or SUNY in connection with the technology licensed in the License Agreement.

Section VII.02 Right of First Refusal .

(a) Offer to Sell Units . Except as otherwise permitted under this Agreement, if any Member desires to transfer any or all of such Member’s Units, such Member (the “Selling Member”) will first deliver a written notice (the “Sale Notice”) to the Company with respect to the proposed transfer of such Units (the “Offered Units”) stating in reasonable detail the identity of the prospective transferee or prospective transferees and the terms and conditions of the proposed transfer (including, without limitation, the proposed date of the consummation of the proposed transfer, if known), and containing an offer to sell the Offered Units to the Offeree Members (as defined below) that will be irrevocable and open to acceptance for a period of thirty (30) days after the Company’s receipt of the Sale Notice. The date of consummation of the proposed transfer may not exceed a date that is ninety (90) days after the Company’s receipt of the Sale Notice.

(b) Option of the Company . For a period of ten (10) days after receipt of the Sale Notice by the Company, the Company may elect to purchase any or all of the Offered Units upon the same terms and conditions as those set forth in the Sale Notice by delivering written notice of such election to the Selling Member stating the number of Offered Units the Company will purchase, if any.

(c) Option of Offeree Members . To the extent that the Company does not elect to purchase all of the Offered Units in accordance with Section 6.02(b) above, the Company will deliver to all Members other than the Selling Member (collectively, the “Offeree Members”), within ten (10) days after its receipt of the Sale Notice, a copy of the Sale Notice and a written notice stating: (i) the number of Offered Units that it has elected not to purchase (the “Remaining Offered Units”), (ii) the number of Units held by each Member as reflected in the Company’s records, and (iii) the date the Company received the Sale Notice. The Offeree Members may elect to purchase any or all of the Remaining Offered Units at the price and upon the terms set forth in the Sale Notice by delivering to the Company, within twenty (20) days after the Company’s receipt of the Sale Notice, written notice specifying: (1) the number of Remaining Offered Units (up to such Member’s ROFR Share (defined below)) that such Offeree Member irrevocably commits to purchase (the “Minimum Amount”), and (2) the maximum number of Remaining Offered Units in excess of such Offeree Member’s ROFR Share that such Offeree Member irrevocably commits to purchase (the “Excess Amount”). The Remaining Offered Units will automatically be deemed to be accepted by the Offeree Members who specified a Minimum Amount in their respective notice of acceptance, allocated among such Offeree Members (with rounding to avoid fractional shares) in proportion to their respective ROFR Share. If one or more Offeree Members declined to participate in such purchase or elect to purchase less than such Offeree Member’s ROFR Share, then the Remaining Offered Units remaining will automatically be deemed to be accepted by the Offeree Members who specified an Excess Amount in their respective notice of acceptance, allocated among such Offeree Members (with rounding to avoid fractional shares) in proportion to their respective ROFR Share; provided, however, that in no event will Remaining Offered Units greater in number than an Offeree Member’s Excess Amount be allocated to such Offeree Member. Any Remaining Offered Units remaining will then be allocated among the remaining Offeree Members whose specified Excess Amount has not been satisfied (with rounding to avoid fractional shares) in proportion to each Offeree Member’s respective ROFR Share, and such procedure will be employed until the entire Excess Amount of each Offeree Member has been satisfied or all Remaining Offered Units have been allocated. For the purposes of this Agreement, “ROFR Share” means the percentage of Remaining Offered Units being offered to an Offeree Member that the Offeree Member is entitled to purchase, and is determined by dividing the aggregate number of Units held by such Offeree Member by the aggregate number of Units held by all of the Offeree Members. An Offeree Member’s failure to give timely written

- 19 -

14723161.1

notice regarding its election to purchase any Remaining Offered Units under this section will be deemed an election by such Offeree Member to not purchase any Remaining Offered Units.

(d) Notice of Acceptance . If the offer to purchase Offered Units is accepted by the Company or any Offeree Member under Sections 6.02(b) or Section 6.02(c), the Company, on behalf of itself and all purchasing Offeree Members, will provide the Selling Member with written notice of such acceptance (the “Notice of Acceptance”) within thirty (30) days after the Sale Notice is received by the Company specifying the number of Offered Units that the Company and each Offeree Member is purchasing (collectively, the “Exercised Units”). Nothing contained herein will prejudice any person’s right to maintain any cause of action or pursue any other remedies available to it as a result of such default.

(e) Offeree Member Closing . The closing of any purchase of the Exercised Units by the Company or any Offeree Member under Sections 6.02(b) or Section 6.02(c), will take place at the principal offices of the Company, or any other location as the parties may agree, no later than the fifth (5th) day after the Notice of Acceptance is provided to the Selling Member. At such closing, the Company and each of the Offeree Members who has elected to purchase Offered Units will deliver payment in immediately available funds in the appropriate amount to the Selling Member against delivery of certificates duly endorsed for transfer or with executed membership interest powers attached representing the Offered Units to be purchased. The Exercised Units will be delivered free and clear of all liens and encumbrances other than those imposed by this Operating Agreement and applicable federal and state securities laws.

(f) Sale to Prospective Transferee . If, thirty (30) days after the Sale Notice is received by the Company, the Company and the Offeree Members have not elected to purchase, in the aggregate, all of the Offered Units, then the Selling Member will be free, subject to the co-sale provisions of Section 6.03 of this Operating Agreement, for a period of ninety (90) days after the Company’s receipt of the Sale Notice, to sell any or all of the Offered Units to the prospective transferee that were not purchased by the Company and the Offeree Members (the “Unsold Units”) at the price and upon the terms and conditions set forth in the Sale Notice; provided, however, that such prospective transferee will execute and deliver to the Company those documents required pursuant to Section 6.05 and Section 6.06 . Promptly after any transfer pursuant to this Section 6.02(f) is completed, the Selling Member will notify the Company of the consummation thereof and will furnish such evidence of the completion and time of completion of such transfer and of the terms thereof as the Company may request. If any Unsold Units are not sold within such sixty (60) day period, then the Selling Member will not be permitted to sell such Unsold Units without again complying with the terms of this Article VI. If the Selling Member determines at any time during such sixty (60) day period that the transfer of any or all of the Offered Units on the terms contained in the Sale Notice is impractical, the Selling Member may terminate all attempts to transfer such Offered Units and recommence the procedures of this Article VI in their entirety without waiting for the expiration of such sixty (60) day period by delivering written notice of such decision to the Company.

Section VII.03 Right of Co-Sale .

(a) Notice of Proposed Sale . If a Selling Member wishes to transfer Units to a prospective transferee and the Selling Member has complied with the applicable provisions of Section 6.02, the Selling Member will first provide a written notice (the “Co-Sale Notice”) to the Offeree Members within five (5) days of receipt of the Notice of Acceptance disclosing: (i) the type and number of Units proposed to be sold to the prospective transferee, (ii) the number of Exercised Units, (iii) the number of Unsold Units, and (iv) the aggregate number of Units held by each of the Offeree Members, along with a copy of the Sale Notice.

(b) Right of Participation in Sales . Upon receipt of the Co-Sale Notice from the Selling Member, the Selling Member and each Offeree Member will have the right to sell to the prospective

- 20 -

14723161.1

transferee, at the same price per unit and on the same terms and conditions set forth in the Co-Sale Notice, that type and number of Units equal to the sum of: (i) the Co-Sale Exercised Units Amount (as defined below), and (ii) the Co-Sale Unsold Units Amount (as defined below). Each Offeree Member that elects to exercise its co-sale rights hereunder will be referred to herein as a “Participant.”

(c) Definitions . The “Co-Sale Exercised Units Amount” for an Offeree Member is equal to the Exercised Units multiplied by a fraction, (i) the numerator of which is the aggregate number of Units (including the Offered Units purchased or designated for purchase, if any, by that Offeree Member pursuant to Section 6.02) held by such Offeree Member, and (ii) the denominator of which is the aggregate number of Units (including the Offered Units purchased or designated for purchase, if any, by the Offeree Members pursuant to Section 6.02) held by the Offeree Members entitled to participate in and who elect to participate in such sale to the prospective transferee. The parties hereto acknowledge and agree that the Co-Sale Exercised Units Amount for the Selling Member will be zero.

The “Co-Sale Unsold Units Amount” for an Offeree Member and the Selling Member is equal to the Unsold Units multiplied by a fraction, (i) the numerator of which is the aggregate number of Units (if an Offeree Member, including the Offered Units purchased or designated for purchase, if any, by that Offeree Member pursuant to Section 6.02 or, if the Selling Member, not including the Offered Units sold or designated for sale, if any, by the Selling Member pursuant to Section 6.02) held by the Selling Member or such Offeree Member, as applicable, and (ii) the denominator of which is the aggregate number of Units (if an Offeree Member, including the Offered Units purchased or designated for purchase, if any, by that Offeree Member pursuant to Section 6.02 less the Co-Sale Exercised Share Amount for that Offeree Member or, if the Selling Member, not including the Offered Units sold or designated for sale, if any, by the Selling Member pursuant to Section 6.02) held by the Selling Member and the Offeree Members entitled to participate in and who elect to participate in such sale to the prospective transferee, as applicable.

(d) Process . If an Offeree Member wishes to participate in any sale under this Section 6.03, the Offeree Member will notify the Selling Member in writing of such intention within ten (10) days of receiving the Co-Sale Notice. On the date of the consummation of the proposed transfer as designated in the Sale Notice, each Participant will affect its participation in the transfer by delivering to the prospective transferee one or more unit certificates, properly endorsed for transfer or with executed membership interest powers attached, which represent the type and number of Units which such Participant elects to transfer calculated in the manner set forth in Section 6.03. Upon written request and surrender of unit certificates representing Units at the offices of the Company by a Participant, the Company will reissue unit certificates representing the Units in the same name as the surrendered unit certificate and in such denominations as the Participant may reasonably request in order to deliver a unit certificate to the Selling Member which represents the type and number of Units which such Participant elects to sell. On the date of the consummation of the proposed transfer as designated in the Sale Notice, each Participant will deliver its Units for sale calculated in the manner set forth in Section 6.03 to the prospective transferee and pursuant to the terms and conditions specified in the Co-Sale Notice, and the prospective transferee will concurrently therewith remit to such Participant that portion of the sale proceeds to which such Participant is entitled by reason of its participation in such sale. To the extent that any prospective transferee prohibits such assignment by the Selling Member or otherwise refuses to purchase Units from a Participant exercising its rights of co-sale hereunder, the Selling Member will not sell to such prospective transferee any Units unless and until, simultaneously with such sale, the Selling Member agrees to purchase such Units from such Participant on the same terms as described in the Co-Sale Notice. Each Participant hereby agrees that it will become a party to, and execute, at the reasonable request of the Selling Member, any customary agreements with the prospective transferee to effect the sale of such Units, so long as the terms of such agreements which impose obligations on such Participants are no more onerous than similar terms in such agreements imposing obligations on the Selling Member; provided, however, that in no event will

- 21 -

14723161.1

any Participant be required to make any representations and warranties jointly and severally with any other Member, or make any representations and warranties other than reasonable and customary representations and warranties relating to authority, enforceability, title to its Units, the absence of restrictions, liens and encumbrances on its Units (other than those imposed by this Agreement and applicable federal and state securities laws), and securities laws matters.

Section VII.04 Tag-Along Right .

(a) Tag-Along Right . Notwithstanding anything to the contrary contained in Section 6.02 and Section 6.03 of this Operating Agreement, if at any time any one or more Members (individually and collectively, the “Majority Member”) wish to transfer Units representing more than fifty percent (50%) of the then outstanding Units in a sale consummated in a single transfer or a series of related transfers to a prospective purchaser or group of prospective purchasers as part of a single transaction or group of related transactions (the “Tag-Along Transaction”), the other Members (the “Tag-Along Members”) will have the right (the “Tag-Along Right”) to participate in such Tag-Along Transaction for the same consideration and on the same terms and conditions as the Majority Member by including in the Tag-Along Transaction the same percentage of the Tag-Along Member’s Units as the weighted-average percentage of Units being sold by the Majority Member in such transfer.

(b) Notice of Exercise . The Majority Member will provide, within fifteen (15) days prior to the consummation of the Tag-Along Transaction, a written notice (a “Tag-Along Notice”) to each Tag-Along Member containing: (i) the name and address of the prospective purchasers, (ii) the proposed purchase price per unit, terms of payment and other material terms and conditions of the proposed Tag-Along Transaction, and (iii) all such other documents, instruments and information as may be required to enable the Tag-Along Members to effectuate the transfer of their Units. If a Tag-Along Member wishes to participate in the Tag-Along Transaction, the Tag-Along Member must deliver to the Majority Member, within ten (10) days of receiving the Tag-Along Notice, written notice (the “Tag-Along Acceptance Notice”) of the Tag-Along Member’s desire to participate in the Tag-Along Transaction. If the Tag-Along Member does not provide a Tag-Along Acceptance Notice to the Majority Member within the applicable time period, the Tag-Along Member will be treated as having waived its right to participate in the Tag-Along Transaction. The Tag-Along Acceptance Notice will state the number of Units that such Tag-Along Member proposes to sell in the Tag-Along Transaction and will constitute an irrevocable commitment by the Tag-Along Member to participate in the Tag-Along Transaction on the terms contained in the Tag-Along Notice.

(c) Cooperation . The Tag-Along Members will cooperate in the Tag-Along Transaction by providing the Majority Member with all materials (including executed purchase and sale agreements and stock transfer documentation) as the Majority Member may reasonably request in order to consummate the Tag-Along Transaction. The Tag-Along Member will, if provided with an opportunity to do so, consent to and vote in favor of the Tag-Along Transaction.

(d) Abandonment . The Majority Holder and any other party to any such Tag-Along Transaction will have the right, in its sole discretion, at all times prior to consummation of the Tag-Along Transaction, to abandon, rescind, annul, withdraw or otherwise terminate the Tag-Along Transaction prior to consummation of the Tag-Along Transaction, whereupon all Tag-Along Rights in respect of the Tag-Along Transaction will become null and void, and neither the Majority Member nor any other such party will have any liability or obligation to the Tag-Along Members with respect thereto. Nothing herein will be construed to obligate the Majority Member to accept any offer or terms for, or to consummate, any Tag-Along Transaction.

- 22 -

14723161.1

(e) Closing . The closing of the Tag-Along Transaction will take place at such time and location as the parties to the Tag-Along Transaction may agree. At such closing, each of the Tag-Along Members who has elected to sell Units in the Tag-Along Transaction will deliver unit certificates duly endorsed for transfer or with executed membership interest powers attached representing the Units to be sold against payment in immediately available funds in the appropriate amount by the prospective purchasers. The Units will be delivered free and clear of all liens and encumbrances other than those imposed by this Agreement and applicable federal and state securities laws. Each Tag-Along Members who has elected to sell Units in the Tag-Along Transaction also hereby agrees that it will become a party to, and execute, at the reasonable request of the Majority Member, any customary agreements with the prospective transferee to effect the sale of such Units; provided, however, that in no event will any Tag-Along Member be required to make any representations and warranties jointly and severally with any other Member, or make any representations and warranties other than reasonable and customary representations and warranties relating to authority, enforceability, title to its Units, the absence of restrictions, liens and encumbrances on its Units (other than those imposed by this Agreement and applicable federal and state securities laws), and securities laws matters.

Section VII.05 Form of Assignment

.

(a) No assignment of all or any portion of a Member’s Units, though otherwise permitted by Article VI shall be valid and effective and the Company shall not recognize the same for the purpose of Distributions or for the allocation of Net Income or Loss with respect to such Units until there is filed with the Company an assignment or similar instrument in writing which is in form reasonably acceptable to the Board.

(b) After receiving an executed assignment or similar instrument as described in paragraph (a) of this Section 6.05, the Company shall make all further Distributions and allocate any Net Income or Loss to the assignee with respect to the Units transferred.

Section VII.06 Admission of Members

. The transferee of Units in the Company, whether permitted by Article VI or otherwise, may be admitted as a Member of the Company only with the approval of the Members holding a majority of all issued and outstanding Units entitled to vote (without giving effect to any Units being sold)and upon furnishing to the Board all of the following:

(a) acceptance, in form reasonably satisfactory to the Board, of all the terms of this Operating Agreement;

(b) such other documents or instruments as may be required by the Board or by applicable law in order to effect admission as a Member; and

(c) payment by the transferee of such reasonable expenses as may be incurred in connection with admission as a Member; and

(d) an opinion from a reputable lawyer or law firm that the transfer of Units complies with applicable laws.

- 23 -

14723161.1

Upon compliance with all conditions and provisions hereof applicable to such transferee becoming a Member, such transferee and the other Members (including, without limitation, the transferor) shall execute and deliver such amendments hereto and/or to the Articles of Organization as are necessary or desirable to constitute such transferee as a Member of the Company.

If a transferee of Units is not admitted as a Member such transferee shall be entitled only to receive the distributions and allocations of Net Income or Loss pertaining to the Units so transferred, but shall have no other rights.

ARTICLE VIIIDISSOLUTION

Section VIII.01 Dissolution

. In addition to any other causes stated herein, the Company shall be dissolved upon the vote of the Members holding at least two-thirds (2/3) of all issued and outstanding Units to dissolve the Company and the consent of the members holding a majority of the Class A Units as set forth in Section 5.01(d). The Company shall continue upon the bankruptcy, death, dissolution, expulsion, incapacity or withdrawal of any Member so long as there is at least one remaining Member.

Section VIII.02 Winding up the Company

. Upon dissolution, the Company shall immediately commence to wind up its affairs and distribute its assets. The Members shall continue to share in Distributions and Net Income or Loss during the period of liquidation in the same proportions as before the dissolution. The property and proceeds from liquidation of Company assets shall be applied as follows:

(a) first, to the payment of creditors of the Company, including Members who are creditors, to the extent permitted by law;

(b) and then, to pay the expenses of winding up the Company;

(c) and finally, to each Member in accordance with their Pro Rata Share.

Section VIII.03 Termination

. The dissolution of the Company shall be effective on the date that the event causing such dissolution occurs, but the Company shall not terminate until all of its assets have been distributed in accordance with Section 7.02 hereof.

Section VIII.04 Final Statement

. As soon as practicable after the dissolution of the Company, a final statement of its assets and liabilities shall be prepared and furnished to all Members.

ARTICLE IXBOOKS AND ACCOUNTS

Section IX.01Books

- 24 -

14723161.1

. The Board shall keep or cause to be kept books of account in which shall be entered fully and accurately in all material respects the transactions of the Company. All books and records and this Operating Agreement and all amendments thereto shall at all times be maintained at the principal office of the Company and shall be open to the inspection and examination of each Member or his or her representatives during ordinary business hours upon reasonable notice. The Board shall furnish or cause to be furnished to all Members a report of the affairs of the Company at least annually and shall timely furnish such additional information as the Members may need to prepare their income tax returns.

Section IX.02Accounting Method

. The accounting method for both book and tax purposes shall be the cash receipts and disbursements methods, unless another permissible method is elected by the Board.

ARTICLE XGENERAL

Section X.01 Notices

. To be effective, any notices which may or are required to be given hereunder by any party to another shall be in writing and sent to the intended recipient by (a) personal delivery, (b) certified or registered United States mail, postage prepaid, or (c) nationally by recognized overnight courier, delivery fees prepaid; in each case to the address of the intended recipient set forth opposite such Person’s name on Schedule A at the end of this Operating Agreement. Any Member may change its address by giving written notice to the other Members in a manner conforming to the notice provisions hereof. Notice will be deemed given immediately upon personal delivery or the next business day following the date on which such notice is mailed or sent by recognized overnight courier in accordance with this Section 9.01.

Section X.02 Captions

. The Section titles and captions contained in this Operating Agreement are for convenience only and shall not be deemed part of the context of this Operating Agreement.

Section X.03 Interpretation

. The terms of this Agreement are intended to supersede any waivable term of the L.L.C. Law that is different from or inconsistent with the terms of this Agreement. Whenever the context may require, any pronoun used herein shall include the corresponding masculine, feminine or neuter forms and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation,” (b) the word “or” is not exclusive and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Articles, Sections, Exhibits and Schedules mean the Articles and Sections of, and the Exhibits and Schedules attached to, this Agreement; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement and (iii) to a statute or regulation means such statute or regulation as amended from time to time and includes any successor legislation thereto and any regulations promulgated there under, including any amendments to such regulations or successor regulations.

Section X.04 Entire Agreement

- 25 -

14723161.1

. This Operating Agreement contains the entire understanding among the Members, and supersedes any prior understandings or written or oral agreement between or among any of them, respecting the within subject matter. There are no representations, agreements, arrangements or understandings, oral or written, between or among any of the Members relating to the subject matter of this Operating Agreement which are not fully expressed herein. The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. There are no conditions precedent to the effectiveness of this Agreement, other than those expressly stated in this Agreement.

Section X.05 No Waiver

. No delay on the part of any Member in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Member of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

Section X.06 Further Actions

. The Members shall execute and deliver all documents, provide all information and take or forebear from all such action as may be necessary or appropriate to achieve the purposes of the Company.

Section X.07 Binding Effect

. This Operating Agreement shall be binding upon and inure to the benefit of the Members and their permitted successors and assigns.

Section X.08 Creditors

. None of the provisions of this Operating Agreement shall be for the benefit of, or enforceable by, any creditor of the Company or any creditor of a Member.

Section X.09 Validity

. In the event that any provision of this Operating Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Operating Agreement.

Section X.10 Governing Law

. This Operating Agreement shall be governed by the laws of the State of New York, without regard to conflicts of law principles.

Section X.11 Amendment

. Subject to Section 417(b) of the Act and other than as set forth herein, this Operating Agreement may be amended or modified only by the affirmative written consent of the Members.

Section X.12 Counterparts

- 26 -

14723161.1

. This Operating Agreement may be executed in counterparts and all counterparts so executed shall for all purposes constitute one agreement, binding on all the parties hereto, notwithstanding that all parties shall not have executed the same counterparts.

Section X.13 Severability

. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.

Section X.14 Indemnification

. To the maximum extent permitted by law, the Company shall indemnify any Member or Director (each a “Covered Person”), as a matter of right, against any claim, liability, loss, damages or expense (including reasonable attorneys’ fees) incurred by such Covered Person in connection with any claim, whether pending or threatened, against such Covered Person because such Covered Person is or was a Member or Director; provided, however, that no such indemnification may be made to or on behalf of any Covered Person if a judgment or other final adjudication adverse to such Indemnified Person established that (a) such Covered Person’s acts were committed in bad faith or were the result of active and deliberate dishonesty, in each case, that was material to the cause of action so adjudicated; or (b) such Covered Person personally gained in fact a financial profit or other advantage to which he or she was not legally entitled.

Section X.15 Specific Performance . The parties hereby declare that it is impossible to measure in money the damages that will accrue to a party hereto by reason of a failure to perform any of the obligations under this Agreement. Therefore, if any party hereto shall institute any action or proceeding to enforce the provisions hereof, any person against whom such action or proceeding is brought, hereby waives the claim or defense therein that such party has or have any adequate remedy at law and the party instituting the action or proceeding shall be entitled to specific performance of the terms of this Agreement. Such remedy shall, however, be cumulative and not exclusive, and shall be in addition to any other remedy which the parties may have.

Section X.16 WAIVER OF JURY TRIAL . EACH PARTY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE UNITS OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

[Signature Page Follows]

- 27 -

14723161.1

IN WITNESS WHEREOF, this Operating Agreement of [_____________] is executed as of the date first set forth above.

COMPANY

[INSERT: COMPANY]

By: Name:Title:

MEMBERS

________________________________________[_____________]

_________________________________________[_____________]

THE RESEARCH FOUNDATION OF STATE UNIVERSITY OF NEW YORK on behalf of [_____________________________]

By: Name:Title:

14723161.1

APPENDIX A

MEMBER AND UNITS INFORMATION

Member Name Address Number/Type of Units Capital Contribution

THE RESEARCH FOUNDATION OF STATE UNIVERSITY OF NEW YORK on behalf of [__________]

[___________] Class A Units

licenseethe research foundation for - …€¦ · web viewwhereas, foundation owns certain...

Documents