Preview | Limited Liability Company Agreement |

LIMITED LIABILITY COMPANY AGREEMENT
of
WILLMAR/METAMORPHIX TURKEY JOINT VENTURE, LLC

WILLMAR POULTRY COMPANY, INC., a corporation duly incorporated pursuant to the laws of Minnesota with principal place of business at Box 753, Willmar, Minnesota 56201-0753 USA (Hereinafter referred to as WILLMAR)

METAMORPHIX, INC., a corporation duly incorporated pursuant to the laws of Delaware, having a principal place of business at 8510A Corridor Road, Savage, Maryland 20763, USA (Hereinafter referred to as MMI), has entered into this Limited Liability Company Agreement as of this 4th day of September, 2002.

WHEREAS Willmar is a major producer of, and supplier of the turkey industry in North America and maintains facilities necessary to test and evaluate products related to such industry under commercial conditions;

AND WHEREAS MMI is developing products based upon diminishing the biological activity of Myostatin^TM (GDF-8) to improve livestock production efficiency, enhance meat quality, or both;

AND WHEREAS Willmar, by its December 1, 1998 Research Agreement with University of Minnesota, has an option to license from the University of Minnesota certain technology relating to the immunizing of turkeys to diminish the biological activity of Myostatin^TM (GDF-8);

AND WHEREAS Willmar has filed a U.S. patent application relating to Myostatin^TM;

AND WHEREAS MMI is the owner of U.S. patent applications relating to Myostatin^TM;

AND WHEREAS MMI and Willmar have agreed to establish a joint venture (in the form of a limited liability company duly organized pursuant to the laws of Delaware) for the purposes of developing, manufacturing, marketing, and the sale of a Myostatin^TM product or products, based upon the most appropriate method available through ownership or license to Willmar and MMI, with the intention that the future development costs of such products be minimized while expediting delivery and marketing of the product to the turkey industry in North America.

INTERPRETATION AND DEFINITIONS

1.01 Definitions

For the purposes of this Agreement, unless there is something in the subject matter or context inconsistent therewith, all words and phrases used herein which are denoted with initial capital letters shall have the meanings assigned to them as set out in this Agreement and, in addition, the following words and phrases shall have the following meanings:

(a)   Affiliate shall mean, during the period the same pertains, any corporation, person, firm, partnership, or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by, or is under common ownership with a Party to this Limited Liability Company Agreement to the extent of not less than fifty (50%) percent of the equity having the power to vote on or direct the affairs of the entity, and any corporation, person, firm, partnership, or other entity actually controlled by, controlling or under common control with a Party to this Limited Liability Company Agreement. Notwithstanding the definition of Affiliate, Affiliate does not include the University of Minnesota or any of its departments, divisions or wholly owned subsidiaries.

(b)   Existing Confidentiality Agreement shall mean that Confidentiality and Non-Disclosure Agreement dated May 11, 2002 and executed by and between MMI and Willmar.

(c)   MMI means MetaMorphix, Inc.

(d)   Willmar means Willmar Poultry Company, Inc.

(e)   Myostatin^TM Technology means those Myostatin^TM (GDF-8) immunizing agents (to be delivered via active or passive transfer), antagonists, transgenic breeds that delete or diminish the biological activity of Myostatin^TM, and or Myostatin^TM related Turkey-specific diagnostic kits and services as the case may be now or in the future in respect of which MMI has a right to grant licenses.

(f)   Licensed Field of Use means the use in the Turkey market of the MMI and/or Willmar Technology in the Territory for purposes of developing, making, using, and selling Myostatin^TM related Products and Services that delete or diminish the biological activity of Myostatin^TM (GDF-8).

(g)   MMI Technology means inventions and know-how comprised of the use and delivery of Myostatin^TM (GDF-8) immunizing agents and antagonists as described in the MMI Patents, and further includes all technical data, information, and biological materials and reagents useful in working with the subject matter of the MMI Patents which is now owned or subsequently acquired by MMI during the term of this Agreement.

(h)   Willmar Technology means inventions and know-how comprised of the use of the delivery of Myostatin^TM immunizing agents by passive transfer as described in the Willmar Patents, and further includes all technical data, information and biological materials and reagents useful in working with the subject matter of the Willmar Patents which is now owned or subsequently acquired by Willmar during the term of this Agreement.

(i) MMI Patents means any patents granted pursuant to such U.S. Patent Applications as are set forth in Schedule 1.01(i), or granted pursuant to any patent applications subsequently filed that is based on any such MMI Patent and includes any continuations, continuations-in-part, divisions, patents of additions re-issues, renewals, and extensions of such patents and patent applications listing attached hereto in Schedule 1.01(i), and all foreign patents corresponding to any of the foregoing.

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	(a)	Affiliate shall mean, during the period the same pertains, any corporation, person, firm, partnership, or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by, or is under common ownership with a Party to this Limited Liability Company Agreement to the extent of not less than fifty (50%) percent of the equity having the power to vote on or direct the affairs of the entity, and any corporation, person, firm, partnership, or other entity actually controlled by, controlling or under common control with a Party to this Limited Liability Company Agreement. Notwithstanding the definition of Affiliate, Affiliate does not include the University of Minnesota or any of its departments, divisions or wholly owned subsidiaries.

	(b)	Existing Confidentiality Agreement shall mean that Confidentiality and Non-Disclosure Agreement dated May 11, 2002 and executed by and between MMI and Willmar.

	(c)	MMI means MetaMorphix, Inc.

	(d)	Willmar means Willmar Poultry Company, Inc.

	(e)	Myostatin^TM Technology means those Myostatin^TM (GDF-8) immunizing agents (to be delivered via active or passive transfer), antagonists, transgenic breeds that delete or diminish the biological activity of Myostatin^TM, and or Myostatin^TM related Turkey-specific diagnostic kits and services as the case may be now or in the future in respect of which MMI has a right to grant licenses.

	(f)	Licensed Field of Use means the use in the Turkey market of the MMI and/or Willmar Technology in the Territory for purposes of developing, making, using, and selling Myostatin^TM related Products and Services that delete or diminish the biological activity of Myostatin^TM (GDF-8).

	(g)	MMI Technology means inventions and know-how comprised of the use and delivery of Myostatin^TM (GDF-8) immunizing agents and antagonists as described in the MMI Patents, and further includes all technical data, information, and biological materials and reagents useful in working with the subject matter of the MMI Patents which is now owned or subsequently acquired by MMI during the term of this Agreement.

	(h)	Willmar Technology means inventions and know-how comprised of the use of the delivery of Myostatin^TM immunizing agents by passive transfer as described in the Willmar Patents, and further includes all technical data, information and biological materials and reagents useful in working with the subject matter of the Willmar Patents which is now owned or subsequently acquired by Willmar during the term of this Agreement.