Amended and Restated Limited Liability Company Agreement of T3 Therapeutics, LLC

 EXHIBIT 10.1 EXECUTION VERSION T3 THERAPEUTICS. LLC AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT shall govern the business and operations of T3 Therapeutics, LLC, a Delaware limited liability company (the "COMPANY") and is entered into effective as of November 16, 2005 by and among the Members and Managers signatory hereto and identified on Schedule I hereto. Capitalized terms used herein and otherwise undefined shall have the meanings given to them in Article XI. WHEREAS, T3 Therapeutics, Inc., a New York corporation (the "DEVELOPMENT CORPORATION"), has undertaken the preliminary design, development and research of products containing T3 (3,5,3' - Triiodo- L- Thyronine) or its derivatives as the active ingredient in compounds and applications for the treatment of diseases and medical conditions (the "PRODUCTS"); WHEREAS, the Development Corporation contributed to the Company, irrevocably, completely and for all time all of its right, title and interest in and to the (i) Products, (ii) all technical data, information, material and other know-how owned by the Development Corporation that is necessary or useful to the development of the Products (collectively, the "PRODUCT KNOW-HOW"); and (iii) all intellectual property rights to the Products and Product Know-How including but not limited to a certain Patent License with the North Shore Hospital (collectively, the "PRODUCT RIGHTS"), in exchange for certain Class A Interests described in that certain Limited Liability Company Agreement (the "ORIGINAL OPERATING AGREEMENT"), dated as of June 25, 2002 (the "Formation Date") and entered into by and among the Members and Managers of the Company; and WHEREAS, pursuant to the Original Operating Agreement, The St. Lawrence Seaway Corporation, an Indiana corporation ("ST. LAWRENCE"), agreed to subscribe for certain Class B Interests according to the terms thereof; and WHEREAS, the Board of the Company has deemed it advisable to amend and restate the operating agreement of the Company, and the Members have unanimously agreed to do so; and WHEREAS, the Members have unanimously agreed to exchange their Class A Interests and Class B Interests for a single class of "Interests" as defined herein and in accordance herewith, and such Class A Interests and Class B Interests, by execution of this Agreement shall be so converted, all on the terms and conditions described herein; NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree that the limited liability company agreement of the Company is hereby amended and restated in its entirety, as follows: 

  ARTICLE I ORGANIZATION AND POWERS 1.01 ORGANIZATION. (a) FORMATION. The rights and liabilities of the Members of the Company shall be as provided in the Act, except as otherwise expressly provided herein. In the event of any inconsistency between any terms and conditions contained in this Agreement and any nonmandatory provisions of the Act, the terms and conditions contained in this Agreement shall govern. (b) CERTIFICATE OF FORMATION; FILINGS. A Certificate of Formation (the "Certificate") has been executed and filed in the Office of the Delaware Secretary of State as required by the Act. With the Special Majority Consent of the Members, the Board of Managers of the Company (the "BOARD") may execute and file any duly authorized amendments to the Certificate from time to time in a form prescribed by the Act. The Board shall also cause to be made, on behalf of the Company, such additional filings and recordings as the Board shall deem necessary or advisable. (c) BUSINESS PURPOSE. The Company is in the business of owning, developing and exploiting the Products, the Product Know-How and the Product Rights. The Company shall engage solely in the business of developing, manufacturing, marketing, selling and licensing the Products. Any change to the business purpose of the Company shall require the approval of the Board and the Special Majority Consent of the Members voting as a single class. (d) NAME. The name of the Company shall be T3 Therapeutics, LLC. The Company may also conduct business at the same time under one or more fictitious names if the Board determines that such is in the best interests of the Company. The Board may change the name of the Company, from time to time, in accordance with applicable law with the Consent of the Members. Tradenames will be filed and published when and if the Board determines it necessary. Any such tradenames shall be renewed as required by applicable law. (e) PRINCIPAL PLACE OF BUSINESS: OTHER PLACES OF BUSINESS. The principal place of business of the Company shall be at such place within or outside the State of Delaware as the Board may from time to time designate. By the approval of the Board, the Company may maintain offices and places of business at such other place or places within or outside the State of Delaware, as and when required by its business and in furtherance of the general character of its business described herein and in the Certificate, and may appoint agents for service of process in all jurisdictions in which the Company shall conduct business. The Company shall file such certificates and documents as are necessary under the laws of any jurisdictions in which the Company shall conduct business. -2- 

  (f) DESIGNATED AGENT FOR SERVICE OF PROCESS. The Company shall continuously maintain a registered office and a designated and duly qualified agent for service of process on the Company in the State of Delaware. (g) TERM. The Company commenced on the date that the Certificate was filed with the Office of the Delaware Secretary of State and shall continue until terminated pursuant to this Agreement. 1.02 POWERS. Subject to all other provisions of this Agreement and in furtherance of the conduct of the business described above and in the Certificate, the Company is hereby authorized to undertake those actions set forth below. (a) CONTRACTS. The Company may enter into, execute, modify, amend, supplement, acknowledge, deliver, perform, and carry out contracts of any kind, including agreements of limited liability companies, whether as a member or manager, contracts with Affiliated Persons, including guarantees and joint venture, limited and general partnership agreements and contracts establishing business arrangements or organizations, necessary to, in connection with, or incidental to the accomplishment of the permitted business of the Company, and to secure the same by mortgages, pledges or other liens. (b) INDEBTEDNESS. The Company may borrow money and issue evidences of indebtedness in furtherance of the permitted business of the Company and to secure the same by mortgages, pledges, or other liens. (c) PAYMENT OF EXPENSES. The Company may, to the extent that funds of the Company are available, pay all expenses, debts and obligations of the Company. (d) GENERAL. The Company may exercise all the powers and privileges granted by the Act or any other law or this Agreement, together with any powers incidental thereto, so far as such powers are necessary or convenient to the conduct, promotion, or attainment of the permitted business, trade, purposes, or activities of the Company. (e) OMNIBUS. The Company may take any other action not prohibited under the Act, this Agreement or other applicable law and in furtherance of the business purpose of the Company. -3- 

  ARTICLE II MANAGEMENT 2.01 MANAGERS. (a) NUMBER OF MANAGERS. The business affairs of the Company shall be managed by and under the direction of the Board of Managers. The Company is authorized to appoint up to six Managers to the Board, as provided herein. The initial Managers serving on the Board shall include the Persons designated in SCHEDULE I hereto. The number of Managers serving may be increased or decreased in accordance with the terms and conditions set forth in this Section 2.01; PROVIDED, that the number of Managers shall not be more than six or less than one. (b) DEVELOPMENT CORPORATION MANAGERS. For so long as the Development Corporation holds at least forty percent (40%) of the issued and outstanding Units, the Development Corporation shall have the right at any time and from time to time to designate and elect up to five (5) Managers, PROVIDED, that if the Development Corporation desires to designate more than two (2) Managers such additional Managers shall have significant experience in the Company's industry or related industries. Such designations and elections shall be effective upon the delivery of a writing executed by the Development Corporation setting forth the names and brief biographies of such designees to the Board and to the other Members. (c) ST. LAWRENCE MANAGER. For so long as St. Lawrence holds at least five percent (5%) of the issued and outstanding Units, St. Lawrence shall have the right at any time and from time to time to designate and elect one (1) Manager. Such designation and election shall be effective upon the delivery of a writing executed by St. Lawrence, setting forth the name of such designee to the Board and to the other Members. (d) TERM; REMOVAL OR RESIGNATION. Each Manager shall hold office for a period of one (1) year or until such individual is removed by the Members which designated him or her, resigns or dies. In the event that any Manager dies, resigns or is unable or unwilling to serve as such, or is removed from office by the Members that designated him or her, the designating Members may elect a successor consistent with the provisions of this Section 2.01. (e) NUMBER OF MEETINGS; NOTICE; OBSERVATION RIGHTS. The Board shall hold at least four (4) meetings per year. At all times, St. Lawrence shall be entitled to not less than two (2) business days advance written notice of any meeting of the Board or committee thereof (and included therewith an agenda of items to be discussed thereat), and shall be entitled to have a designated representative present at such meeting. In addition, St. Lawrence shall at all times receive written notice of actions taken by the Board or committee thereof, and shall be entitled to any and all documents, reports or financial information prepared for, or used by, the Board or committee thereof which such documents, reports or financial information shall be delivered to St. Lawrence no later than simultaneously with their delivery to the Board or committee thereof, as applicable. -4- 

  (f) REGULAR MEETINGS. Regular meetings of the Board may be held at such times and places as shall from time to time be fixed by resolution of the Board, and no notice need be given of regular meetings held at times and places so fixed; PROVIDED, HOWEVER, that any resolution relating to the holding of regular meetings shall remain in force only if at any meeting of the Board at which a resolution is adopted fixing the times or place or places for any regular meetings any Manager is absent, no meeting shall be held pursuant to such resolution without notice to or waiver by such absent Manager pursuant to Section 2.01(h). (g) SPECIAL MEETINGS. Special meetings of the Board may be called by the Chairman of the Board (if any), the President, or by anyone or more Managers and shall be held at the place and on the date and hour designated in the call thereof. (h) NOTICES. Notices of any special meeting of the Board shall be given by the Secretary or an Assistant Secretary to each Manager, by mailing to him or her, postage prepaid, and addressed to him or her at his or her address as registered on the books of the corporation, or if not so registered at his or her last known home or business address, a written notice of such meeting, at least four days before the meeting, or by delivering such notice to him or her at least 48 hours before the meeting or by sending to him or her at least 48 hours before the meeting, by prepaid telegram addressed to him or her at such address or by facsimile transmission or e-mail at such address, notice of such meeting. In the absence of both such officers, such notice may be given by the officer or one of the Managers calling the meeting. Notice need not be given to any Manager who has waived notice (a) in writing executed by him or her before or after the meeting and filed with the records of the meeting, or (b) by attending the meeting except for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. (i) ACTIONS BY BOARD. Any action to be taken by the Board shall require the approval of a majority of the members of Board; PROVIDED, that with respect to any matter, agreement or claim involving the Company, on the one hand, and a Member, Manager or an Affiliated Person of a Member or Manager, on the other hand, the Board shall act solely with the approval of those Managers who are not Affiliated with the contracting party. In such instance the Board may take action by majority consent of the non-Affiliated Managers. In addition, at any meeting of the Board any number of Managers present at any meeting or at any adjourned meeting may adjourn such meeting; PROVIDED, that all absent Managers receive or waive notice pursuant to Section 2.01(h) of any such adjournment that exceeds four (4) business days. (j) ACTION BY WRITTEN CONSENT. Any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if a majority of the members of the Board or committee, as the case may be, consent thereto in writing or electronic transmission, and the writing or writings or electron transmission are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form -5- 

  (k) TELEPHONE MEETINGS. Members of the Board, or any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 2.01(k) shall constitute presence in person at such meeting. (l) PLACE OF MEETINGS. The Board may hold its meetings, and have an office or offices, within or without the State of Delaware. (m) COMMITTEES. (i) The Board may designate one or more committees, each committee to consist of one or more of the Managers, provided that the St. Lawrence Manager shall have the right to sit upon any such committee. The Board may designate one or more Managers as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent permitted by the resolution of the Board or in this Agreement, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company, and may authorize the seal of the Company (if any) to be affixed to all papers which may require it. (ii) Notwithstanding anything contained herein to the contrary, no committee shall have the power or authority to approve or adopt, or recommend to the Members, any action or matter expressly required by the Act or this Agreement to be submitted to the Members for approval. (iii) Except as otherwise provided by statute, the Certificate, or this Agreement, the affirmative vote of at least a majority of the members of the committee shall be the act of the committee. (iv) Each committee, except as otherwise provided by resolution of the Board, shall fix the time and place of its meetings within or without the State of Delaware, shall adopt its own rules and procedures, and shall keep a record of its acts and proceedings and report the same from time to time to the Board. 2.02 MANAGERS AS MEMBERS. Any Manager may, but need not, hold an Interest in the Company as a Member, and such person's rights and interest as a Manager shall be distinct and separate from such person's rights and Interest as a Member. -6- 

  2.03 MANAGEMENT OF THE COMPANY. The business affairs of the Company shall be managed by and under the direction of the Board. All management and other responsibilities not specifically reserved to the Members in this Agreement shall be vested in the Board, and the Members shall have no voting rights except as specifically provided in this Agreement. Each Manager shall devote, and if applicable, shall cause the Company's officers to devote, such time to the affairs of the Company as is reasonably necessary for performance by the Manager of his or her duties; provided, such Persons shall not be required to devote full time to such affairs. The Board shall have the right and power to manage, operate, and control the Company and to do all things which the Board may deem necessary or desirable for the Company or its permitted business including the appointment of officers and agents, and the granting of authority to such officers and agents to perform certain functions, and to enter into contracts, all as authorized and on the terms and subject to the limitations established by the Board. In the event of a vacancy in the Board, the remaining Managers (except as otherwise provided by law) may exercise the powers of the full Board until the vacancy is filled. 2.04 DUTIES OF CARE AND LOYALTY OF MANGERS. (a) DUTY OF CARE. The Managers do not in any way guarantee the return of the Members' Capital Contributions or a profit for the Members from the operations of the Company. In discharging their duties, the Managers shall have the benefit of the "business judgment rule" (as established under Delaware corporate law) and, in addition thereto, may rely in good faith upon the records required to be maintained under this Agreement and upon such information, opinions, reports or statements by any of the Members, officers or their agents, or by any other Person as to matters the Managers reasonably believe are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Company or any other facts pertinent to the existence and amount of Company property from which distributions might properly be paid. (b) DUTY OF LOYALTY. The Managers shall have a duty of loyalty to the Company. This duty of loyalty owed by the Managers to the Company shall be identical to that of the duty of loyalty owed by the members of the board of directors of a Delaware corporation to such corporation as established under Delaware law. 2.05 CONTRACTS WITH AFFILIATED PERSONS. (a) COMMERCIAL TRANSACTIONS. The Company may enter into one or more oral or written agreements, leases, contracts or other arrangements for the furnishing to or by the Company of goods, services or space with any Member, Manager or Affiliated Person thereof (including as an officer pursuant to Rule 2.08 or as a non-officer employee), and may pay compensation thereunder for such goods, services or space if: (i) The material facts as to the contracting party's relationship or interest and as to the contract or transaction are disclosed or are known to the Board, and the Board in good faith authorizes the contract or transaction in accordance with Section 2.01(i); or -7- 

  (ii) The material facts as to the contracting party's relationship or interest and as to the contract or transaction are disclosed or are known to the Members, and the contract or transaction is specifically approved in good faith by the written consent of a majority in interest of those Members who are not Affiliated with the contracting party; or (iii) The contract or transaction is fair as to the Company as of the time it is authorized, approved or ratified by the Board and the Members. (b) SALE OF ASSETS. The Company may enter into an agreement or series of agreements pursuant to which it sells all or substantially all of its assets or grants an exclusive perpetual license to all or substantially all of its material intellectual property to a Member, Manager or Affiliated Person thereof; provided, that the Company shall have first obtained a Special Majority Consent. 2.06 COMPENSATION OF MANAGERS AND MEMBERS. No payment shall be made by the Company to any Manager or Member for such Manager or Member's services as a Manager or Member except as expressly provided in this Agreement or as approved by the Board with the Consent of the Members. Each Manager shall be entitled to reimbursement from the Company for all expenses reasonably incurred by such Manager in managing and conducting the business and affairs of the Company. The Board shall determine which expenses, if any, are allocable to the Company in a manner that is fair and reasonable to the Managers and the Company, and if such allocation is made in good faith it shall be conclusive in the absence of manifest error. The foregoing shall not prohibit payments and reimbursements to any Manager or Member who is also an officer of the Company, in such Person's capacity as an officer, to the extent approved by the Board. 2.07 INDEMNIFICATION OF MANAGERS, OFFICERS AND OTHERS. Each Manager (including any Manager acting within the scope of his or her authority as an officer appointed under Rule 2.08), and the officers, directors, and shareholders of any Manager which is a corporation, shall be entitled to indemnity from the Company for any liability incurred and/or for any act performed by them within the scope of the authority conferred on them by or pursuant to this Agreement, and/or for any act committed to be performed, except for their gross negligence or willful misconduct, which indemnification shall include all reasonable expenses incurred, including reasonable legal and other professional fees and expenses. Upon the approval of the Board, the Company may make advancements of any such expenses. The doing of any act or failure to do any act by a Manager, the effect of which may cause or result in loss or damage to the Company, if done in good faith to promote the best interests of the Company, shall not subject the Manager to any liability to the Members except for gross negligence or willful misconduct. -8- 

  2.08 OFFICERS OF THE LLC. (a) ENUMERATION. The officers of the Company shall be a President, a Secretary, a Treasurer and such Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers as the Board may from time to time determine and elect or appoint. The President, the Secretary, the Treasurer and nominees to any other offices created by the Board shall be elected by the Board. Two or more offices may be held by the same person. (b) TERM. Upon election, each of the officers of the Company shall hold office until their respective successors are elected and qualified or until their earlier resignation or removal. (c) VACANCIES. Any vacancy at any time existing in any office may be filled by the Board pursuant to subsection (a) above. (d) PRESIDENT. The President shall be the chief executive officer of the Company except as the Board may otherwise provide. It shall be his duty and he shall have the power to see that all orders and resolutions of the Board are carried into effect. He shall from time to time report to the Board all matters within his knowledge which the interests of the Company may require to be brought to its notice. The President shall perform such duties and have such powers additional to the foregoing as the Board shall designate. (e) VICE PRESIDENT. In the absence or disability of the President, his powers and duties shall be performed by the Vice President, if elected and if only one, or, if more than one, by the one designated for the purpose by the Board or, in the absence of such designation, the Vice President longest serving in such capacity as of date of such absence or disability. Each Vice President shall perform such duties and have such powers additional to the foregoing as the Board shall designate. (f) TREASURER. The Treasurer shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit or oversee the deposit of all monies and other valuable effects in the name and to the credit of the Company in such depositories as shall be designated by the Board or in the absence of such designation in such depositories as he shall from time to time deem proper. He shall disburse or oversee the disbursement of the funds of the Company as shall be ordered by the Board, taking proper vouchers for such disbursements. He shall promptly render to the President and to the Board such statements of his transactions and accounts as the President and Board may from time to time require. The Treasurer shall perform such duties and have such powers additional to the foregoing as the Board may designate. (g) ASSISTANT TREASURER. In the absence or disability of the Treasurer, his powers and duties shall be performed by the Assistant Treasurer, if elected and if only one, or if more than one, by the one designated for the purpose by the Board or, in the absence of such designation, the Assistant Treasurer longest serving as of the date of such absence or disability. Each Assistant Treasurer shall perform such duties and have such powers additional to the foregoing as the Board shall designate. -9- 

  (h) SECRETARY. The Secretary shall issue notices of all meetings of Members, of the Board and of committees thereof where notices of such meetings are required by law or this Agreement. He shall record the proceedings of the meetings of the Members and of the Board and shall be responsible for the custody thereof in a book to be kept for that purpose. He shall sign such instruments as require his signature. In his absence at any meeting, an Assistant Secretary or the Secretary pro tempore shall perform his or her duties thereat. He shall perform such duties and have such powers additional to the foregoing as the Board shall designate. (i) ASSISTANT SECRETARY. In the absence or disability of the Secretary, his powers and duties shall be performed by the Assistant Secretary, if elected and if only one, or, if more than one, by the one designated for the purpose by the Board or, in the absence of such designation, the Assistant Secretary longest serving as of the date of such absence or disability. Each Assistant Secretary shall perform such duties and have such powers additional to the foregoing as the Board shall designate. (j) REMOVAL. The Board may remove any officer, either with or without cause, at any time. (k) BOND. The Company may secure the fidelity of any or all of its officers or agents by bond or otherwise. (l) RESIGNATION. Any officer, agent or employee of the Company may resign at any time by giving written notice to the Board, to the President or to the Secretary of the Company. Any such resignation shall take effect at the time specified therein, or, if the time be not specified, upon receipt thereof; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. ARTICLE III MEMBERS AND CAPITAL CONTRIBUTIONS 3.01 CAPITAL ACCOUNTS. A separate Capital Account shall be maintained for each Member, including any Member who shall hereafter acquire an Interest in the Company. Capital Accounts shall be maintained in accordance with the provisions of Rule 704 of the Code and the Regulations thereunder, except as provided herein. 3.02 INITIAL MEMBERS AND INITIAL CAPITAL CONTRIBUTIONS. (a) INITIAL CONTRIBUTION BY DEVELOPMENT CORPORATION. The Members agree and acknowledge that the execution of the Original Operating Agreement by the Development Corporation as of the Formation Date constituted the full, complete and irrevocable contribution by the Development Corporation (and in turn by the Stockholders thereof) of all its right, title and interest in and to the Products, the Product Know How and the Product Rights, and further constituted the making of the Capital Contribution required by the Development Corporation for the issuance of the Interests acquired by it as of the Formation Date and described on SCHEDULE I hereto. -10- 

  (b) INITIAL CONTRIBUTION BY ST. LAWRENCE. The Members agree and acknowledge that the execution of the Original Operating Agreement by St. Lawrence as of the Formation Date, and St. Lawrence's concurrent contribution of the amount of cash set forth opposite its name on SCHEDULE 1, constituted the making of the Capital Contribution required by St. Lawrence for the issuance of the Interests acquired by it as of the Formation Date and described on Schedule I hereto. (c) MINORITY OPTION. There is hereby authorized by the execution of this Agreement by the parties, an amended option (the "MINORITY OPTION") to Edward B. Grier III (the "OPTION HOLDER") which shall be in substantially in the form of EXHIBIT A attached hereto (the "OPTION AGREEMENT"). Upon the exercise of the Minority Option by the Option Holder in accordance with the Option Agreement and otherwise in accordance with this Agreement, the Option Holder shall be admitted to the Company as a Member. 3.03 ADDITIONAL MEMBERS. Additional Persons may be admitted to the Company as Members, and additional Interests may be created and assigned and/or issued to those additional Persons and/or to existing Members, all on the terms and conditions approved by the Board and the Consent of the Members, PROVIDED that if any additional Interests are proposed to be issued to any existing Members, Managers or Affiliates thereof , then such issuance shall require the approval of the Board and Special Majority Consent. No Member shall have any preemptive, preferential, or other right with respect to the issuance or sale of any Interests, or any warrants, subscriptions, options or other rights with respect thereto. Notwithstanding anything contained in this Agreement to the contrary, the terms of admission or issuance may not create any class or series of Interests having rights, powers or duties senior to those of any existing Interests unless the Board has obtained the majority written consent of the Members holding the Interests in such junior class(es). Upon the approval of any new issuances in accordance with the foregoing requirements of this Section 3.03, the Board shall reflect the creation of additional Interests by amendment of Schedule I hereto, and shall reflect the creation of any new class or series in an amendment to this Agreement indicating the different rights, powers and duties possessed by the several classes or series of Interests, either of which amendments need be executed only by the Board. -11- 

  3.04 NO WITHDRAWAL OF OR INTEREST ON CAPITAL. Except as otherwise set forth herein no Member shall have the right to resign and receive any distribution from the Company as a result of resignation, and no Member shall have the right to receive the return of all or any part of his, her, or its Capital Contributions or Capital Account, or any other distribution, except as provided in Rules 4.01, 4.02 and 8.03. No Member shall have any right to demand and receive property of the Company in exchange for all or any portion of his, her, or its Capital Contributions or Capital Account, except as provided in Rules 8.03 and 4.02 upon dissolution and liquidation of the Company. No interest or prior or preferred return shall accrue or be paid on any Capital Contribution or Capital Account except pursuant to Rules 4.01 and 4.02, as the same may be hereafter amended. 3.05 LIABILITY OF MEMBERS. No Member or Manager shall be entitled, obligated or required (a) to make any Capital Contribution in addition to his, her or its Capital Contribution made under Rules 3.02 or (b) to make any loan to the Company. No Member, in his, her, or its capacity as a Member, shall have any liability to restore any negative balance in his, her, or its Capital Account or to contribute to, or in respect of, the liabilities or the obligations of the Company, or to restore any amounts distributed from the Company, except as may be required under the Act or other applicable law. In no event shall any Member, in his, her, or its capacity as a Member, be personally liable for any liabilities or obligations of the Company. 3.06 ADDITIONAL CAPITAL REQUIREMENTS. (a) NEW INTERESTS. In the event that the Company requires additional funds to carry out its purposes, to conduct its business, or to meet its obligations, the Company may create and issue and/or assign additional Interests to such investors as the Board may determine, or may borrow funds from such lender(s) as the Board may determine, in each case including any one or more Managers or existing Members, all on such terms and conditions as are approved by the Board and otherwise in compliance with this Agreement. (b) LOANS. No loan made to the Company by any Member or Manager shall constitute a Capital Contribution to the Company for any purpose. (c) DEFAULTS. No Member or Manager shall have any obligation to give notice of an existing or potential default of any obligation of the Company to any of the Members or Managers, nor shall any Member or Manager be obligated to make any Capital Contributions or loan to the Company, or otherwise supply or make available any funds to the Company, even if the failure to do so would result in a default of any of the Company's obligations or the loss or termination of all or any part of the Company's assets or business. 3.07 THIRD PARTY LIABILITIES. The provisions of this Article III are not intended to be for the benefit of any creditor or other Person (other than a Member in his, her, or its capacity as a Member) to whom any debts, liabilities, or obligations are owed by (or who otherwise has any claim against) the Company or any of the Members. Moreover, notwithstanding anything contained in this Agreement, including specifically but without limitation this Article III, no such creditor or other Person shall obtain any rights under this Agreement or shall, by reason of this Agreement, make any claim in respect of any debt, liability, or obligation (or otherwise) against the Company or any Member. -12- 

  ARTICLE IV DISTRIBUTIONS 4.01 DISTRIBUTION OF COMPANY FUNDS. Except as provided in Rule 4.02 and Rule 4.04, all Company funds which are determined by the Board to be available for distribution shall be distributed to the Members in proportion to their respective Percentage Interests. 4.02 DISTRIBUTION UPON DISSOLUTION. Proceeds from a Terminating Capital Transaction and amounts available upon dissolution, and after payment of, or adequate provision for, the debts and obligations of the Company, and liquidation of any remaining assets of the Company, shall be distributed and applied in the following priority: (i) FIRST, to fund reserves for liabilities not then due and owing and for contingent liabilities to the extent deemed reasonable by the Board; PROVIDED, that, upon the expiration of such period of time as the Board shall deem advisable, the balance of such reserves remaining after payment of such contingencies shall be distributed in the manner hereinafter set forth in this Rule 4.02; and (ii) SECOND, to the Members, an amount sufficient to reduce the Members' Capital Accounts to zero, in proportion to the positive balances in such Capital Accounts (after reflecting in such Capital Accounts all adjustments thereto necessitated by (A) all other Company transactions (including distributions and allocations of Profits and Losses and items of income, gain, deduction, and loss) and (B) such Terminating Capital Transaction); and (iii) THIRD, to the Members in proportion to their respective Percentage Interests. 4.03 DISTRIBUTION OF ASSETS IN KIND. No Member shall have the right to require any distribution of any assets of the Company in kind. If any assets of the Company are distributed in kind, such assets shall be distributed on the basis of their fair market value as determined by the Board. Any Member entitled to any interest in such assets shall, unless otherwise determined by the Board, receive separate assets of the Company and not an interest as tenant-in-common, with other Members so entitled, in each asset being distributed. -13- 

  4.04 DISTRIBUTIONS TO COVER MEMBERS' TAX LIABILITY. Unless the Board shall determine that the Company does not have sufficient liquid assets to make the distribution contemplated by this Rule 4.04 consistent with prudent business practice, the Board shall, at a minimum, distribute to Members, no less often than quarterly, amounts intended to cover the potential federal, state, or local tax obligations of such Members on account of the cumulative allocation to them of taxable income in excess of tax losses pursuant to this Agreement. For purposes of the foregoing, such federal, state, and local tax obligations of each Member shall be assumed to equal the highest effective combined federal and state income tax rate applicable to any Member multiplied by each Member's Percentage Interest multiplied by the cumulative allocation to all Members of taxable income in excess of tax losses determined as described in the definition of Profits and Losses without the adjustments listed therein, with the result reduced by the cumulative amount previously distributed pursuant to this Rule 4.04. Partial distributions made to the Members pursuant to this Rule 4.04 shall be made in proportion to their respective amounts calculated under the previous sentence. For purposes of applying Rule 4.04 to subsequent distributions to the Members, distributions made pursuant to this Rule 4.04 shall be disregarded and shall not be deemed to have been made, pursuant to Rule 4.01. ARTICLE V ALLOCATION OF PROFITS AND LOSSES 5.01 ALLOCATION OF PROFITS AND LOSSES. (a) After giving effect to the allocations set forth in Rules 9.01 and 9.02, and subject to the other provisions of Article IX, Profits shall be allocated in the following order and priority: (i) FIRST, in proportion to any deficit Capital Account balances, until such deficits are eliminated; and (ii) SECOND, to each Member until the balance in his, her, or its Capital Account is equal to the amount of such Member's Adjusted Capital Contributions; and (iii) THIRD, any remaining Profits shall be allocated among the Members in proportion to their respective Percentage Interests. (b) After giving effect to the allocations set forth in Rules 9.01 and 9.02, and subject to the other provisions of Article IX, Losses shall be allocated in the following order and priority: (i) FIRST, to each Member to reduce the balance in his, her, or its Capital Account to an amount equal to such Member's Adjusted Capital Contributions; and -14- 

  (ii) SECOND, to each Member to reduce the balance in his, her, or its Capital Account to zero; and (iii) THIRD, any remaining Losses shall be allocated among the Members in proportion to their respective Percentage Interests. ARTICLE VI FISCAL MATTERS 6.01 BOOKS AND RECORDS. The Board shall keep or cause to be kept complete and accurate books and records of the Company on the income tax method of reporting and otherwise in accordance with generally accepted accounting principles consistently applied. Such documents and information as are required to be furnished to the Members under the Act shall be made available at an office of the Company for examination and copying by any Member or Manager, or his, her, or its duly authorized representative, at his reasonable request and at his expense during ordinary business hours. 6.02 BANK ACCOUNTS. Bank accounts and/or other accounts of the Company shall be maintained in such banking and/or other financial institution(s) as shall be selected by the Board, and withdrawals shall be made and other activity conducted on such signature or signatures as shall be determined by the Board. 6.03 FISCAL YEAR. The fiscal year of the Company shall end on December 31 of each year. 6.04 TAX MATTERS PARTNER. The Tax Matters Partner shall be the Person so named in SCHEDULE I hereto. At any time and from time to time if there is no Tax Matters Partner, a Tax Matters Partner may be designated by the approval of the Board. The Tax Matters Partner is hereby authorized to, and shall perform all duties of, a "tax matters partner" under the Code and shall serve as Tax Matters Partner until his, her, or its resignation or until the designation of his, her, or its successor, whichever occurs sooner. -15- 

  ARTICLE VII TRANSFERS AND COMPANY ISSUANCES 7.01 RESTRICTIONS ON TRANSFER. (a) No Member may Transfer all or any part of his, her, or its Units, or otherwise withdraw from the Company, except with the prior written approval of the Board (excluding from such vote any Manager who is the proposed transferor or an Affiliate of the proposed transferor, unless such Manager is the sole Manager of the Company), which may be withheld for any reason or for no reason, PROVIDED that any transfer of more than fifty percent (50%) of the Interests of any Member who holds more than fifty percent 50% of the outstanding Interests of the Company, shall in addition require the written consent of a majority in interest of those Members who are not transferring their Interests. No transferee of a Transfer may be admitted as a Member except with the prior written approval of the Board and the Consent of the Members, which may be withheld for any reason or for no reason, and upon the satisfaction of the other requirements of this Agreement. Notwithstanding the foregoing to the contrary, the transfer of Units by St. Lawrence to any of its Affiliates or to any successor in interest shall be expressly permitted hereby and upon such transfer any such Affiliate shall be admitted to the Company as a Member, subject to the other provisions set forth in Section 7.01. (b) No Person who becomes the holder by operation of law of all or any portion of the Units may be admitted as a Member except with the prior written approval of the Board and the Consent of the Members, which may be withheld for any reason or for no reason, and upon satisfaction of the other requirements of this Agreement. (c) Every Transfer of a Unit permitted by this Article VII shall nevertheless be subject to the following: (i) No Transfer of any Units may be made if such Transfer would cause or result in a breach of any agreement binding upon the Company or of then applicable rules and regulations of any governmental authority having jurisdiction over such Transfer. The Board may require as a condition of any Transfer that the transferor assume all costs incurred by the Company in connection therewith and furnish an opinion of counsel, satisfactory to the Company both as to counsel and opinion, that the proposed Transfer complies with applicable law, including federal and state securities laws, and does not cause the Company to be an investment company as such term is defined in the Investment Company Act of 1940, as amended. (ii) Notwithstanding anything contained herein to the contrary, no Unit shall be transferred if, by reason of such Transfer, the classification of the Company for federal income tax purposes would be adversely affected or jeopardized, or if such Transfer would have any other substantial adverse effect for federal income tax purposes. (iii) In the event of any Transfer, there shall be filed with the Company a duly executed and acknowledged counterpart of the instrument effecting such Transfer. The transferee, if any, shall execute such additional instruments as shall be reasonably required by the Board. If and for so long as such instruments are not so executed and filed, the Company need not recognize any such Transfer for any purpose, and the transferee shall be entitled only to the rights which are required under the Act to be afforded to a transferee who does not become a Member. -16- 

  (iv) Upon the admission or withdrawal of a Member, this Agreement (including without limitation SCHEDULE I hereto) and/or the Certificate shall be amended appropriately by the Board to reflect the then existing names and addresses of the Members and their respective Percentage Interests and Units. (d) A transferor of a Unit shall, if the transferee is a Member hereunder or if the transferee becomes a Member pursuant to the provisions of this Agreement, be relieved of liability under this Agreement with respect to the transferred Unit arising or accruing on or after the effective date of the Transfer. (e) Any Person who acquires in any manner whatsoever a Unit, whether or not such Person has accepted and assumed in writing the terms and provisions of this Agreement or been admitted into the Company as a Member as provided in this Rule 7.01, shall be deemed, by acceptance of the acquisition thereof, to have agreed to be subject to and bound by all of the obligations of this Agreement with respect to such Unit and shall be subject to the provisions of this Agreement with respect to any subsequent Transfer of such Unit. (f) Any Transfer in contravention of any of the provisions of this Agreement shall be null and void and ineffective to transfer any interest in the Company, and shall not bind, or be recognized by, or be recorded on the books of, the Company, and any transferee or assignee in such transaction shall not be or be treated as or deemed to be a Member for any purpose. In the event any Member shall at any time Transfer a Unit in contravention of any of the provisions of this Agreement, then each other Member shall, in addition to all rights and remedies at law and equity, be entitled to a decree or order restraining and enjoining such transaction, and the offending Member shall not plead in defense thereto that there would be an adequate remedy at law, it being expressly hereby acknowledged and agreed that damages at law would be an inadequate remedy for a breach or threatened breach of the violation of the provisions concerning such transactions set forth in this Agreement. ARTICLE VIII DISSOLUTION AND TERMINATION 8.01 LIMITATIONS. The Company may be dissolved, liquidated, and terminated only pursuant to the provisions of this Article VIII, and the parties hereto do hereby irrevocably waive any and all other rights they may have to a dissolution of the Company or a sale or partition of any or all of the Company assets. 8.02 EVENTS CAUSING DISSOLUTION. Notwithstanding the Act, the Company shall be dissolved and its affairs wound up only upon the occurrence of any of the following events: -17- 

  (a) A Terminating Capital Transaction; PROVIDED, that no Terminating Capital Transaction may occur without the prior written approval of the Board, the Consent of the Members and the satisfaction of the conditions set forth in Section 4.02; (b) The election to dissolve the Company made in writing by the approval of the Board with the Consent of the Members; or (c) Any consolidation or merger of the Company with or into any entity in which the Company is not the resulting or surviving entity; PROVIDED, that no such consolidation or merger may occur without the prior written approval of the Board and the Consent of the Members. Any dissolution of the Company other than as provided in this Paragraph 8.02 shall be a dissolution in contravention of this Agreement. 8.03 PROCEDURES ON DISSOLUTION. Upon dissolution of the Company, the Board or if none, a liquidator elected by Special Majority Consent of the Members, shall liquidate the assets of the Company, apply and distribute the proceeds thereof under Rule 4.02 of this Agreement, and cause the cancellation of the Certificate. The Company shall not terminate until the Certificate shall be canceled. ARTICLE IX TAX ALLOCATION PROVISIONS 9.01 REQUIRED REGULATORY ALLOCATIONS. (a) LIMITATION ON AND REALLOCATION OF LOSSES. At no time shall any allocations of Losses, or any item of loss or deduction, be made to a Member if and to the extent such allocation would cause such Member to have, or would increase, any Adjusted Capital Account Deficit of such Member at the end of any fiscal year. To the extent any Losses or items are not allocated to one or more Members pursuant to the preceding sentence, such Losses shall be allocated to the Members to which such losses or items may be allocated without violation of this Rule 9.01(a). (b) MINIMUM GAIN CHARGE-BACK. If there is a net decrease in the Minimum Gain of the Company during any fiscal year, then items of income or gain of the Company for such fiscal year (and, if necessary, subsequent fiscal years) shall be allocated to each Member in an amount equal to such Member's share of the net decrease in the Minimum Gain, determined in accordance with Regulations Rule 1.704-2(d)(I). A Member's share of the net decrease in the Minimum Gain of the Company shall be determined in accordance with Regulations Rule 1.7042(g). The items of income and gain to be so allocated shall be determined in accordance with Regulations Rules 1. 704-2(t)(6) and 1. 704-2(j)(2). -18- 

  (c) PARTNER MINIMUM GAIN CHARGE-BACK. Notwithstanding any contrary provisions of this Article IX, other than Rule 9.01(b) above, if there is a net decrease in Partner Minimum Gain attributable to Partner Nonrecourse Debt during any fiscal year, then each Member who has a share of such Partner Minimum Gain, determined in accordance with Regulations Rule 1.704- 2(i), shall be allocated items of income and gain of the Company, determined in accordance with Regulations Rule 1.704-2(j)(2)(ii), for such fiscal year (and, if necessary, subsequent fiscal years) in an amount equal to each such Member's share of the net decrease in such Partner Minimum Gain, determined in accordance with Regulations Rule 1.704-(2)(i). (d) QUALIFIED INCOME OFFSET. If any Member unexpectedly receives an item described in Regulations Rule 1.704-1(b)(2)(ii)(d)(4), (5), or (6), items of income and gain shall be allocated to each such Member in an amount and manner sufficient to eliminate, as quickly as possible and to the extent required by Regulations Rule 1.704-1 (b )(2)(ii)(d), the Adjusted Capital Account Deficit of such Member; PROVIDED, that an allocation pursuant to this Rule 9.01(d) shall be made if and only to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article IX have been tentatively made as if this Rule 9.01(d) were not in the Agreement. (e) GROSS INCOME ALLOCATION. In the event any Member has a Capital Account deficit at the end of any Company fiscal year which is in excess of the sum of the items to be credited to a Member's Capital Account under clause (a) of the definition of Adjusted Capital Account Deficit, then each such Member shall be allocated items of income and gain in the amount of such excess as quickly as possible; PROVIDED, that an allocation pursuant to this Rule 9.01(e) shall be made if, and only to the extent that, such Member would have a Capital Account deficit in excess of such sum after all other allocations provided for in this Article IX have been tentatively made as if this Rule 9.01(e) were not in this Agreement. As among Members having such excess, if there are not sufficient items of income and gain to eliminate all such excesses, such allocations shall be made in proportion to the amount of any such excess. (f) NONRECOURSE DEDUCTIONS. Nonrecourse Deductions for any fiscal year or other period (not including any Partner Nonrecourse Deductions allocated pursuant to Rule 9.01(g)) shall be allocated among the Members in proportion to their respective Percentage Interests. Solely for purposes of determining each Member's proportionate share of the "excess nonrecourse liabilities" of the Company, within the meaning of Regulations Rule 1.752-3(a)(3), each Member's interest in Company profits shall be equal to his, her, or its Percentage Interest. The items of losses, deductions, and Code Rule 705(a)(2)(b) expenditures to be so allocated shall be determined in accordance with Regulations Rule 1.704-2(j)(1)(ii). (g) PARTNER NONRECOURSE DEDUCTIONS. Any Partner Nonrecourse Deductions for any fiscal year or other period shall be allocated to the Member who bears the economic risk of loss with respect to the nonrecourse liability (as determined and defined under Regulations Rule 1.704-2(b)(4)) to which such Partner Nonrecourse Deductions are attributable, in accordance with Regulations Rule 1.704-2(i)(1). The items of losses, deductions, and Code Rule 705(a)(2)(b) expenditures to be so allocated shall be determined in accordance with Regulations Rule 1.7042(j)(1)(ii). -19- 

  (h) BASIS ADJUSTMENT. To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to either of Code Rules 734(b) or 743(b) is required pursuant to Regulations Rule 1.704-1(b)(2)(iv)(m) to be taken into account in determining Capital Accounts, the amount of such adjustment to the 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 allocated to the Members in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Regulations. 9.02 CURATIVE ALLOCATIONS. The allocations set forth in Rule 9.01 are intended to comply with certain requirements of Regulations Rules 1.704-1(b) and 1.704-2 and shall be interpreted consistently therewith. Such allocations may not be consistent with the manner in which the Members intend to divide Company distributions and to make Profit and Loss allocations. Accordingly, by approval of the Board, other allocations of Profits, Losses, and items thereof shall be made among the Members so as to prevent the allocations in Rule 9.01 from distorting the manner in which Company distributions will be made among the Members pursuant to Rules 5.01 and 5.02 hereof. In general, the Members anticipate that this will be accomplished by specially allocating other Profits, Losses, and items of income, gain, loss, and deduction among the Members so that the net amount of allocations under Rule 9.01, and allocations under this Rule 9.02, to each such Member is zero. However, the Board shall have discretion to accomplish this result in any reasonable manner. 9.03 TAX ALLOCATIONS AND BOOK ALLOCATIONS. Except as otherwise provided in this Rule 9.03, for federal income tax purposes, each item of income, gain, loss, and deduction shall, to the extent appropriate, be allocated among the Members in the same manner as its correlative item of "book" income, gain, loss, or deduction has been allocated pursuant to the other provisions of this Agreement. In accordance with Code Rule 704( c) and the Regulations thereunder, depreciation, amortization, gain, and loss, as determined. for tax purposes, with respect to any property whose Book Value differs from its adjusted basis for federal income tax purposes shall, 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, such allocation to be made by approval of the Board in any manner which is permissible under said Code Rule 704( c) and the Regulations thereunder, and the Regulations under Code Rule 704(b). In the event the Book Value of any property of the Company is subsequently adjusted, subsequent allocations of income, gain, loss, and deduction with respect to any such property shall take into account any variation between the adjusted basis of such property for federal income tax purposes and its Book Value in the manner provided under Rule 704(c) of the Code and the Regulations thereunder. -20- 

  Allocations pursuant to this Rule 9.03 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 Member's Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement. 9.04 GENERAL ALLOCATION AND DISTRIBUTION RULES. (a) INTERIM ALLOCATIONS. For purposes of determining the Profits, Losses, or any other items allocable to any period, Profits, Losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Board using any permissible method under Code Rule 706 and the Regulations thereunder. Except as otherwise provided in this Agreement, all items of income, gain, loss, and deduction shall be allocable among the Members in the same proportions as the Profits or Losses are allocated for the fiscal year in which such item is included. (b) NEW MEMBERS. Upon the admission of a new Member or the Transfer of an Interest, the new and old Members or the transferor and transferee shall be allocated shares of Profits and Losses and other allocations and shall receive distributions, if any, based on the portion of the fiscal year that the new or transferred Interest was held by the new and old Members, or the transferor and transferee, respectively. For the purpose of allocating Profits and Losses and other allocations and distributions, (i) such admission or Transfer shall be deemed to have occurred on the first day of the month in which it occurs, or if such date shall not be permitted for allocation purposes under the Code or the Regulations, on the nearest date otherwise permitted under the Code or the Regulations, and (ii) if required by the Code or the Regulations, the Company shall close its books on an interim basis on the last day of the previous calendar month. 9.05 TAX WITHHOLDING. If the Company incurs a withholding tax obligation with respect to the share of income allocated to any Member, (a) any amount which is (i) actually withheld from a distribution that would otherwise have been made to such Member and (ii) paid over in satisfaction of such withholding tax obligation shall be treated for all purposes under this Agreement as if such amount had been distributed to such Member, and (b) any amount which is so paid over by the Company, but which exceeds the amount, if any, actually withheld from a distribution which would otherwise have been made to such Member, shall be treated as an interest-free advance to such Member. Amounts treated as advanced to any Member pursuant to this Rule 9.05 shall be repaid by such Member to the Company within 30 days after the Board gives notice to such Member making demand therefor. Any amounts so advanced and not timely repaid shall bear interest, commencing on the expiration of said 30 day period, compounded monthly on unpaid balances, at an annual rate equal to the Applicable Federal Rate as of such expiration date. The Company shall collect any unpaid amounts from any Company distributions that would otherwise be made to such Member. -21- 

  ARTICLE X GENERAL PROVISIONS 10.01 NOTICES. Any and all notices under this Agreement shall be effective (a) upon delivery, if delivered in hand, (b) on the third business day after being sent by registered or certified mail, return receipt requested, postage prepaid, or (c) on the first business day after being sent by express mail, telecopy, or commercial overnight delivery service providing a receipt for delivery. All such notices in order to be effective shall be in writing and addressed, if to the Company, at its registered office under the Act and, if to a Member, at the last address of record on the Company books. Copies of such notices shall also be sent to the last address for the recipient which is known to the sender, if different from the address so specified. 10.02 WORD MEANINGS. Words such as "herein," "hereinafter," "hereof," and "hereunder" refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The singular shall include the plural, and the masculine gender shall include the feminine and neuter, and vice versa, unless the context otherwise requires. 10.03 BINDING PROVISIONS. Subject to the restrictions on transfer set forth herein, the covenants and agreements contained herein shall be binding upon, and inure to the benefit of, the parties hereto, their heirs, Legal Representatives, and permitted successors and assigns, and any other Person who is issued or who is otherwise acquires any Interest at any time. 10.04 APPLICABLE LAW. This Agreement, including its existence, validity, construction, and operating effect, and the rights of each of the parties hereto, shall be governed by and construed in accordance with the laws of the State of Delaware without regard to otherwise governing principles of conflicts of law. 10.05 COUNTERPARTS. This Agreement may be executed in several counterparts and, as so executed, shall constitute one agreement binding on all parties hereto, notwithstanding that all of the parties have not signed the original or the same counterpart. 10.06 SEPARABILITY OF PROVISIONS. Each provision of this Agreement shall be considered separable. If, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid, and if for any reason any provision or provisions herein would cause the Members to be liable for or bound by the obligations of the Company, such provision or provisions shall be deemed void and of no effect. -22- 

  10.07 SECTION TITLES. Section titles are for descriptive purposes only and shall not control or alter the meaning of this Agreement as set forth in the text. 10.08 AMENDMENTS. Except as otherwise specifically provided herein, including, without limitation, in Rules 3.03 and 7.01(c)(iv), this Agreement may be amended or modified only with the approval of the Board and the Special Majority Consent of Members holding the majority of the issued and outstanding Units, voting as a single class. 10.09 ENTIRE AGREEMENT. This Agreement together with SCHEDULE I attached hereto embody the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings relating to such subject matter. 10.10 WAIVER OF PARTITION. Each Member agrees that irreparable damage would be done to the Company if any Member brought an action in court to dissolve the Company. Accordingly, unless otherwise expressly authorized in this Agreement, each Member agrees that he, she, or it shall not, either directly or indirectly, take any action to require partition or appraisement of the Company or of any of the assets or properties of the Company and, notwithstanding any provisions of this Agreement to the contrary, each Member (and his, her, or its successors and assigns) accepts the provisions of the Agreement as his, her, or its sole entitlement on termination, dissolution, and/or liquidation of the Company and hereby irrevocably waives any and all right to maintain any action for partition or to compel any sale or other liquidation with respect to his, her, or its interest, in or with respect to, any assets or properties of the Company; and each Member agrees that he, she, or it will not petition a court for the dissolution, termination or liquidation of the Company. 10.11 SURVIVAL OF CERTAIN PROVISIONS. The Members acknowledge and agree that this Agreement contains certain terms and conditions which are intended to survive the dissolution and termination of the Company, including, but without limitation, the provisions of Rules 2.07 and 3.05. The Members agree that such provisions of this Agreement which by their terms require, given their context, that they survive the dissolution and termination of the Company, so as to effectuate the intended purposes and agreements of the Members, shall survive, notwithstanding that such provisions had not been specifically identified as surviving and notwithstanding the dissolution and termination of the Company or the execution of any document terminating this Agreement, unless such termination document specifically provides for nonsurvival by reference to this Rule 10.11 and to specific nonsurviving provisions. -23- 

  ARTICLE XI DEFINITIONS The following defined terms used in this Agreement shall have the meanings specified below: "ACT" means the Delaware Limited Liability Company Act, in effect at the time of the initial filing of the Certificate with the office of the Secretary of the State of Delaware, and as thereafter amended from time to time. "ADJUSTED CAPITAL ACCOUNT DEFICIT" means, 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 Regulations Rules 1.704-2(g)(1) and 1.704-2(i)(5); and (b) debit to such Capital Account the items described in Regulations Rule 1.7041(b)(2)(ii)(d)(4), (5) and (6). The foregoing definition is intended to comply with the provisions of Regulations Rule 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. "ADJUSTED CAPITAL CONTRIBUTION" means a Member's initial and all additional Capital Contributions to the Company, reduced by all distributions made to such Member under Rule 4.01. "AFFILIATED PERSON" or "Affiliate" means, with reference to a specified Person, (i) a member of such Person's family, (ii) an entity in which such Person or one or more of his or her family members directly or indirectly holds more than three percent of the equity, or is a director, employee, consultant, or officer, or (iii) one or more Legal Representatives of such Person and/or any Persons referred to in clauses (i) or (ii) above. "AGREEMENT" means this Amended and Restated Limited Liability Company Agreement as it may be amended, supplemented, or restated from time to time. "APPLICABLE FEDERAL RATE" means the Applicable Federal Rate as that term is defined in Code Rule 7872, whether the short-term, mid-term or long-term rate, as the case may be, as published from time to time by the Secretary of the Treasury. -24- 

  "BOARD OF MANAGERS" or "Board" means the Board of Managers described in Article II of this Agreement. "BOOK VALUE" means, with respect to any asset of the Company, such asset's adjusted basis for federal income tax purposes, except that: (i) the initial Book Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset (not reduced for any liabilities to which it is subject or which the Company assumes), as such value is determined and for which credit is given to the contributing Member under this Agreement; (ii) the Book Values of all assets of the Company shall be adjusted to equal their respective gross fair market values, as determined by the Board, at and as of the following times: (a) the acquisition of an additional or new Interest by a new or existing Member in exchange for other than a de minimis capital contribution, or in exchange for services by such Member, if the Board reasonably determine that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members; (b) the distribution by the Company to. a Member of more than a de minimis amount of any asset of the Company (including cash or cash equivalents) as consideration for all or any portion of the Member's Interest, if the Board reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members; and (c) the liquidation of the Company within the meaning of Regulations Rule 1.7041(b)(2)(ii)(g); and (iii) the Book Value of the assets of the Company shall be increased (or decreased) to reflect any adjustment to the adjusted basis of such assets pursuant to Rule 734(b) or Rule 743(b) of the Code, but only to the extent such adjustments are taken into account in determining Capital Accounts pursuant to Regulations Rule 1.704-1(b)(2)(iv)(m); PROVIDED, HOWEVER, that Book Value shall not be adjusted pursuant to this clause (iii) to the extent that the Board determines that an adjustment pursuant to clause (ii) hereof is necessary or appropriate in connection with the transaction that would otherwise result in an adjustment pursuant to this clause (iii). If the Book Value of an asset has been determined or adjusted pursuant to the preceding clauses (i), (ii), or (iii), such Book Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses, and the amount of the adjustment shall thereafter be taken into account as gain or loss from the distribution of such asset for purposes of computing Profits or Losses. -25- 

  "CAPITAL ACCOUNT" of any Member shall mean the Capital Account of such Member referred to in Rule 3.01 hereof. "CAPITAL CONTRIBUTION" means the amount of cash and the value of any other property contributed to the Company by a Member with respect to such Member's Interest, net of liabilities relating to such contributed property that the Company assumes or to which the Company takes subject under Rule 752 of the Code. Any non-cash property shall be valued by agreement, of the Board and the contributing Member, which valuation shall be conclusive. "CERTIFICATE" means the Certificate of Formation creating the Company, as it may from time to time be amended in accordance with the Act. "CODE" means the Internal Revenue Code of 1986, as amended from time to time, and any subsequent federal law of similar import. "COMPANY" means the limited liability company formed pursuant to the Certificate and this Agreement, as it may from time to time be constituted and amended. "CONSENT" means the written consent or approval of more than 50% in interest, based on Percentage Interests held as Members, of those Members entitled to participate in giving such Consent, and if more than one class of Members is so entitled then more than 50% shall be so required with respect to each such class. No later than 14 days prior to the Company's delivery of materials soliciting the Consent of the Members (or such longer period as applicable law may require), the Company shall deliver to each Member a written notice describing in reasonable detail the action for which consent will be sought. "DEPRECIATION" means, for each year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable for federal income tax purposes with respect to an asset for such year or other period, except that if the Book Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount that bears the same relationship to the Book Value of such asset as the depreciation, amortization, or other cost recovery deduction computed for tax purposes with respect to such asset for such period bears to the adjusted tax basis for such asset or, if such asset has a zero adjusted tax basis, Depreciation shall be determined with reference to the initial Book Value of such asset using any reasonable method selected by the Board, but not less than depreciation allowable for tax purposes for such year. "DEVELOPMENT CORPORATION" means T3 Therapeutics, Inc., a New York corporation. "INTEREST" means the entire equity interest (or "limited liability company interest" as such term is used in the Act) of a Member in the Company and all rights and liabilities associated therewith, including without limitation rights to distributions (liquidating or otherwise), allocations, information, and rights to consent or approve, which Interest shall be as set forth on SCHEDULE I in the name of the applicable Member. Interests shall be represented by Units as set forth on SCHEDULE I hereto. -26- 

  "LEGAL REPRESENTATIVE" means, with respect to any individual, a duly appointed executor, administrator, guardian, conservator, personal representative, or other legal representative appointed as a result of the death or incompetency of such individual. "LOSSES" shall have the meaning provided below under the heading "Profits and Losses." "MANAGERS" shall refer to the Person(s) named as Managers in this Agreement and any Person who becomes an additional, substitute, or replacement Manager as permitted by this Agreement, in each such Person's capacity as a Manager of the Company. "MEMBER" shall refer any Person named as a Member in this Agreement and any Person who becomes an additional, substitute, or replacement Member as permitted by this Agreement, in each such Person's capacity as a Member of the Company; and "Members" shall refer to all such Persons collectively. "MINIMUM GAIN" shall have the meaning given in Regulations Rule 1.704-2(d). "MINORITY OPTION" has the meaning set forth in Section 3.02(c). "NONRECOURSE DEDUCTIONS" shall have the meaning given in Regulations Rule 1.704-2(b)(1). "OPTION HOLDER" means Edward B. Grier III, the holder of the Minority Option. "PARTNER MINIMUM GAIN" shall mean an amount, with respect to each Partner Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if such Partner Nonrecourse Debt were treated as a nonrecourse liability, determined in accordance with Regulations Rule 1.704-2(i)(3). "PARTNER NONRECOURSE DEBT" shall have the meaning given in Regulations Rule 1.7042(b)(4). "PARTNER NONRECOURSE DEDUCTIONS" shall have the meaning given in Regulations Rule 1.704- 2(i)(4). "PERCENTAGE INTEREST" means the relative Interest of a Member in proportion to all outstanding Interests, or of the class of Interest which the Member holds, as set forth on SCHEDULE I, as such schedule may be amended from time to time. -27- 

  "PERSON" means any natural person, partnership (whether general or limited), limited liability company, trust, estate, association, or corporation. "PROFITS AND LOSSES" means, for each fiscal year or other period, an amount equal to the Company's taxable income or loss for such year or period, determined in accordance with Code Rule 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Rule 703(a)(I) shall be included in taxable income or loss), with the following adjustments: (i) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this provision shall be added to such taxable income or loss; (ii) Any expenditures of the Company described in Code Rule 705(a)(2)(B) or treated as Code Rule 705(a)(2)(B) expenditures pursuant to Regulations Rule 1. 704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses pursuant to this provision, shall be subtracted from such taxable income or loss; (iii) Gain or loss from a disposition of property of the Company with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Book Value of such property, rather than its adjusted tax basis; (iv) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing taxable income or loss, there shall be taken into account the Depreciation on the assets for such fiscal year or other period; and (v) Any items which are separately allocated pursuant to Rules 9.01 and/or 9.02 which otherwise would have been taken into account in calculating Profits and Losses pursuant to the above provisions shall not be taken into account and, as the case may be, shall be added to or deducted from such amounts so as to be not part of the calculation of the Profits or Losses. If the Company's taxable income or loss for such year, as adjusted in the manner provided above, is a positive amount, such amount shall be the Company's Profits for such year; and if negative, such amount shall be the Company's Losses for such year. "REGULATIONS" means the Regulations promulgated under the Code, and any successor provisions to such Regulations, as such Regulations may be amended from time to time. "SPECIAL MAJORITY CONSENT" means the written consent or approval of more than 66 2/3% in interest, based on Percentage Interests held as Members, of those Members entitled to participate in giving such Special Majority Consent, and if more than one class of Members is so entitled then more than 66 2/3% shall be so required with respect to each such class. No later than 14 days prior to the Company's delivery of materials soliciting the Consent of the Members (or such longer period as applicable law may require), the Company shall deliver to each Member a written notice describing in reasonable detail the action for which consent will be sought. -28- 

  "ST. LAWRENCE" means The St. Lawrence Seaway Corporation, an Indiana corporation, or any successor thereto. "TAX MATTERS PARTNER" shall have the meaning given in Rule 6.04. "TERMINATING CAPITAL TRANSACTION" means a sale or other disposition of all or substantially all of the assets of the Company, a merger or consolidation of the Company, a liquidation or dissolution of the Company or any other transaction which results in the cessation of the Company's business, operations or independent legal existence. "TRANSFER" and any grammatical variation thereof shall refer to any sale, exchange, issuance, redemption, assignment, distribution, encumbrance, hypothecation, gift, pledge, retirement, resignation, transfer, or other withdrawal, disposition, or alienation in any way as to any interest as a Member. Transfer shall specifically, without limitation of the above, include assignments and distributions resulting from death, incompetency, Bankruptcy, liquidation, and dissolution. "UNITS" means equal units representing the Interests of the several Members of the Company at any particular time, each of which Units shall have rights and duties the same as each other Unit unless this Agreement shall expressly provide differing rights, powers and duties with respect to separate classes or series of Units. The definitions set forth in the Act shall be applicable, to the extent not inconsistent herewith, to define terms not defined herein and to supplement definitions contained herein. * * * -29- 

  IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first above written. MEMBERS: T3 Therapeutics, Inc. By /s/ Irwin L. Klein ------------------------------------------------------ Dr. Irwin L. Klein, President St. Lawrence Seaway Corp. By: _/s/ Edward B. Grier, III --------------------------------------------------- Name: Edward B. Grier, III Title: Vice President and Director Edward Grier /s/ Edward B. Grier, III ------------------------------------------------------- Edward Grier COMPANY: T3 Therapeutics, LLC /s/ Irwin L. Klein -------------------------------------------------------- Dr. Irwin L. Klein, Manager -30- 

  Schedule I to Amended and Restated Limited Liability Company Agreement of T3 Therapeutics, LLC as of November 16, 2005 MANAGER Dr. Irwin L. Klein TAX MATTERS PARTNER Dr. Irwin L. Klein MEMBERS - ------------------------------- --------------- ----------------------- --------------------- --------- Name, Address and Tax I.D. No. Issue Date Capital Contribution Percentage Interest Units - ------------------------------- --------------- ----------------------- --------------------- --------- T3 Therapeutics, Inc. 6/24/02 Product, Product 72.50% 725 8 Luquer Road Know How and Product Manhasset, NY 11030 Rights EIN:__________ - ------------------------------- --------------- ----------------------- --------------------- --------- The St. Lawrence Seaway 6/24/02 $750,000 25.00% 250 Corp. Indianapolis, Indiana ($40,000 of which EIN:__________ was pursuant to the cancellation of a Promissory Note in such amount); other consideration 11/16/05 $50,000 cash - ------------------------------- --------------- ----------------------- --------------------- --------- Edward Grier 6/30/02 Purchase from T3, 2.50% 25 SS NO._________ Inc. =============================== =============== ======================= ===================== ========= TOTALS 100.00% 1000 =============================== =============== ======================= ===================== ========= -31-