Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT of Armkel, LLC, a Delaware limited
liability company (the "Company"), dated as of March 9, 2001, among Church &
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Xxxxxx Co, Inc. ("Church & Xxxxxx"), Xxxxx Investment Associates VI, L.P. ("KIA
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VI") and KEP VI, LLC ("KEP VI") (as modified, amended, restated or supplemented
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from time to time, this "Agreement").
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WHEREAS, Church & Xxxxxx Co., Inc. ("Church & Xxxxxx") and Xxxxx &
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Company, L.P. ("Xxxxx") have formed a limited liability company by filing a
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Certificate of Formation on March 9, 2001 (the "Certificate"), pursuant to the
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Delaware Limited Liability Company Act (as from time to time amended and
including any successor statute of similar import, the "Act") to be treated as a
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partnership for federal income tax purpose; and
WHEREAS, Church & Xxxxxx and Xxxxx have determined that the members of
the Company shall be Church & Xxxxxx, KEP VI (an affiliate of Xxxxx) and KIA VI
(an affiliate of Xxxxx) (each, a "Member", and collectively, the "Members").
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NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1.1. -- FORMATION OF LIMITED LIABILITY COMPANY
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Section 1.1. Company Name and Purpose. The name of the Company shall be
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Armkel, LLC. The Company may carry on any lawful business, purpose or activity
for which limited liability companies may be formed under the laws of the State
of Delaware.
Section 1.2. Registered Office and Registered Agent. The address of the
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registered office is 0000 Xxxxxx Xxxxxx, in the City of Wilmington, County of
New Castle and name of the registered agent at such address is The Corporation
Trust Company.
Section 1.3. Principal Place of Business. The principal place of
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business and chief executive office of the Company shall be c/o Kelso & Company,
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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Section 1.4. Transfer of Xxxxx Membership. Xxxxx hereby transfers, and
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Church & Xxxxxx consents to such transfer, Xxxxx'x membership interest in the
Company to KIA VI and KEP VI and Xxxxx shall no longer be a member of the
Company.
Section 1.5. Member Contributions and Percentage Interest. Each Member
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agrees to make an initial contribution in the amount set forth in the records of
the Company, which records shall also reflect from time to time the extent to
which the initial contribution and any other contributions of each Member have
been received and not returned by the Company. Each Member's percentage interest
is set forth on Schedule A hereto. Schedule A may be amended from time to time
to reflect changes in Members' percentage interests.
Section 1.6. Execution and Filing of Certificate of Formation. All
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actions heretofore taken in connection with the filing of the Certificate be,
and they hereby are, approved, ratified, confirmed and adopted in all respects
as the actions of the Company.
Section 1.7. Ministerial Acts. The Officers (as defined below) are, and
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each of them individually hereby is, designated as an authorized person, within
the meaning of the Act, and shall be authorized: (i) to execute and file (or
direct the execution and filing of) (x) a Schedule 13-D, and any amendments
thereto, to be filed pursuant to the Securities Exchange Act of 1934, as amended
and (y) a Form SS-4 in order to obtain an Employer Identification Number for the
Company; and (ii) to take or cause to be taken any and all such further actions
and to prepare, execute, deliver and, if necessary, file, at any time and from
time to time, any and all such instruments, deeds, requests, receipts, notes,
applications, reports, certificates, filings and other documents with any
foreign, federal, state or regulatory agencies or authorities and to obtain such
consents as they, or any one of them, shall deem appropriate, necessary or
advisable.
ARTICLE 2 -- MANAGEMENT
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Section 2.1. Identity of the Managers. Church & Xxxxxx and Xxxxx shall
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each be a manager of the Company (each a "Manager" and together, the
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"Managers").
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Section 2.2. Identity of Officers. Xxx Xxxxx and Xxxxx X. Xxxxxxx, XX,
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shall each be Vice Presidents of the Company (each an "Officer" and together,
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the "Officers") and shall hold such office until a successor shall have been
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named by either Manager, or until his earlier death, resignation or removal.
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Section 2.3. Powers and Authority of Members and Managers. Except as
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provided in Section 1.7 hereto, the approval of both Managers shall be required
in order to bind the Company.
Section 2.4. Reliance by Third Parties. Any person dealing with the
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Company may rely on a certificate signed by any Manager: (a) as to who the
Members or other Managers hereunder are; (b) as to the existence or nonexistence
of any fact or facts which constitute conditions precedent to acts by the
Members or in any other manner germane to the affairs of the Company; (c) as to
who is authorized to execute and deliver any instrument or document on behalf of
the Company; (d) as to the authenticity of any copy of this Agreement and
amendments hereto; (e) as to any act or failure to act by the Company or as to
any other matter whatsoever involving the Company or any Member (solely with
respect to the activities of the Company); or (f) as to the authority of such
Manager to act. Any person dealing with the Company with respect to any
instrument or document delivered pursuant to Section 1.7 of this Agreement may
rely on any such instrument or document signed by any Officer.
Section 2.5. Exculpation and Indemnification. The Managers and Officers
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of the Company and each Member and such Member's Affiliates (as defined below),
and the partners, officers, directors, employees and controlling persons (as
such term is defined in the Securities Act of 1933, as amended, and the rules
and regulations thereunder) of each Member and such Member's Affiliates
(collectively, the "Indemnified Persons") shall not be liable, directly or
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indirectly, to the Company, any other Member or any other person who has an
interest in the Company for any act or omission (in relation to the Company or
this Agreement) taken or omitted by such Indemnified Person in good faith,
provided, that such act or omission did not constitute gross negligence, fraud,
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willful violation of the law or a violation of this Agreement or its bad faith.
To the fullest extent permitted by applicable law, the Company shall indemnify
and hold harmless each Indemnified Person against all claims, liabilities and
expenses of whatever nature ("Claims") relating to activities undertaken in
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connection with the Company, including, but not limited to, amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and as
counsel fees and expenses reasonably incurred in connection with the
investigation, defense or disposition of any action, suit or other proceeding,
whether civil or criminal, before any court or administrative body in which such
Indemnified Person may be or may have been involved, as a party or otherwise, or
with which such Indemnified Person may be or may have been threatened, while
acting as such Indemnified Person; provided, further, that no indemnity shall be
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payable hereunder against any liability incurred by such Indemnified Person by
reason of gross negligence, fraud, a willful violation of the law or its breach
of this Agreement or its bad faith. No Indemnified Person shall settle or
compromise any Claim without the written consent, which consent shall not be
unreasonably withheld, of all Members other than such
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Indemnified Person (if a Member), provided that if such consent is unreasonably
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delayed, such Indemnified Person shall be entitled to so settle or compromise
such Claim without such consent so long as any such settlement shall include as
an unconditional term a release of the Indemnifying Person from all liability in
respect of such Claim. "Affiliate" shall mean, with respect to any specified
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person, a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, the
person specified.
Section 2.6. Advance of Expenses. Expenses incurred by an Indemnified
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Person in defense or settlement of any Claim that may be subject to a right of
indemnification hereunder may be advanced by the Company prior to the final
disposition thereof upon receipt of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall ultimately be determined
that the Indemnified Person is not entitled to be indemnified by the Company.
Section 2.7. Non-Exclusivity. The right of any Indemnified Person to
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the indemnification provided herein shall be cumulative of, and in addition to,
any and all rights to which such Indemnified Person may otherwise be entitled by
contract or as a matter of law or equity and shall extend to such Indemnified
Person's successors, assigns and legal representatives.
Section 2.8. Satisfaction from Company Assets. All judgments against
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the Company or an Indemnified Person, in respect of which such Indemnified
Person is entitled to indemnification, shall first be satisfied from Company
assets before the Indemnified Person is responsible therefor.
Section 2.9. No Third Party Rights. Except as expressly provided
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herein, none of the provisions of this Article 2 shall be deemed to create or
grant any rights in favor of any third party, including, without limitation, any
right of subrogation in favor of any insurer or surety. The rights of
indemnification granted hereunder shall survive the dissolution, winding up and
termination of the Company.
ARTICLE 3 -- MISCELLANEOUS
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Section 3.1. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED AND
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ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE
TO CONFLICT OF LAWS PRINCIPLES.
Section 3.2. Counterparts. This Agreement and any written amendment,
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waiver, modification or supplement hereto may be executed in any number of
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counterparts, each of which shall be deemed an original of this Agreement or of
such written amendment, waiver, modification or supplement. Delivery by
facsimile of an executed signature page of this Agreement or any written
amendment, waiver, modification or supplement shall be effective as delivery of
a manually executed counterpart hereof or thereof.
Section 3.3. Notices. Any notice required or permitted to be given to
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any Member or Manager in connection with this Agreement shall be delivered in
person or by mail, overnight delivery, telephone or facsimile:
If to Xxxxx, KIA VI or KEP VI:
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c/o Kelso & Company
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
fax: (000) 000-0000
If to Church & Xxxxxx:
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Church & Xxxxxx Co., Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
fax: (000) 000-0000
;or at such other place as such party may from time to time request in writing.
Section 3.4. Amendments. This Agreement may be amended, waived,
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modified or supplemented at any time by the unanimous written consent of the
Members.
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IN WITNESS WHEREOF, the party hereto has executed and delivered this
Agreement as of the date first above written.
CHURCH & XXXXXX CO., INC.
By: ___________________________
XXXXX & COMPANY, L.P.
By: Xxxxx & Companies, Inc.,
its general partner
By: ___________________________
XXXXX INVESTMENT
ASSOCIATES VI, L.P.
By: Xxxxx XX VI, LLC, General Partner
By: ___________________________
Managing Member
KEP VI, LLC
By: ___________________________
Managing Member
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Schedule A
Member Percentage Interest
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Church & Xxxxxx Co., Inc. 50%
Xxxxx Investment Associates VI, L.P 42.5%
KEP VI, LLC 7.5%
