EXHIBIT 3.4
AMENDMENT NO. 1
TO THE
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF ARMKEL, LLC
This AMENDMENT NO. 1 (this "Amendment") to the Amended and
Restated Limited Liability Company Agreement of Armkel, LLC (the "Company"),
dated August 27, 2001 (the "LLC Agreement"), is made as of this 24/th/ day of
September, 2001 by and between Church & Xxxxxx Co., Inc., a Delaware
corporation ("C&D") and Xxxxx Protection Venture, LLC, a Delaware limited
liability company (the "Xxxxx Member"), as the members of the Company (the
"Members").
RECITALS
WHEREAS, the Members are party to the LLC Agreement governing
the operation and management of the Company; and
WHEREAS, the Members desire to amend the LLC Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Members hereby agree as follows:
Section 1. Defined Terms. Capitalized terms used herein but
not otherwise defined herein shall have the meanings ascribed thereto in the LLC
Agreement.
Section 2. Amendments to LLC Agreement. Upon execution of
this Amendment, the LLC Agreement is hereby amended as follows:
(a) Section 1.1 of the LLC Agreement is hereby amended by
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inserting the following new definitions before the definition of "C&D Change of
Control":
"'C&D Consolidated EBITDA' shall mean, with respect to C&D for
any period, the "Consolidated EBITDA" of C&D and its
Subsidiaries for such period as calculated pursuant to the C&D
Senior Credit
Facility in effect on the Closing Date (and without giving
effect to any subsequent amendments thereto).
`C&D Consolidated Total Debt' shall mean, with respect to C&D
for any period, the "Consolidated Total Debt" of C&D and its
Subsidiaries for such period as calculated pursuant to the C&D
Senior Credit Facility in effect on the Closing Date (and
without giving effect to any subsequent amendments thereto)."
(b) Section 1.1 of the LLC Agreement is hereby amended by
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inserting the following new definition before the definition of "C&D Initial
Contribution":
`C&D Indebtedness' shall mean, with respect to C&D, any
"Indebtedness" of C&D or its Subsidiaries, as such term is
defined pursuant to the C&D Senior Credit Facility in effect
on the Closing Date (and without giving effect to any
subsequent amendments thereto).
(c) Section 1.1 of the LLC Agreement is hereby amended by
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deleting the definition of "Consolidated EBITDA" in its entirety and replacing
it with the following:
"`Consolidated EBITDA' shall mean have the meaning assigned
thereto in the Senior Credit Facility."
(d) Section 1.1 of the LLC Agreement is hereby amended by
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deleting in their entirety the definitions of "Consolidated Interest Expense"
and "Consolidated Net Income".
(e) Section 3.1 of the LLC Agreement is hereby amended by
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inserting the following three sentences at the end of such section:
"All Interests in the Company shall be securities governed by
Article 8 of the Uniform Commercial Code. Each certificate
evidencing Interests shall bear the following legend: `THIS
CERTIFICATE EVIDENCES AN INTEREST IN ARMKEL, LLC AND SHALL BE
A SECURITY FOR PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL
CODE.' Notwithstanding the provisions of 14.9 of this
Agreement, this Section 3.1 shall not be amended, and no
purported amendment to this Section 3.1 shall be effective,
until all
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outstanding certificates representing Interests shall have
been surrendered to the Company for cancellation."
(f) Section 7.1 of the LLC Agreement is hereby deleted in
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its entirety and replaced with the following:
"Section 7.1 Allocations of Profits and Losses. After
giving effect to the special allocations set forth in Section
7.3, Net Profits and Net Losses and each item of income, gain,
loss, deduction and credit thereof of the Company shall be
determined for each Fiscal Year in accordance with the
accounting method used by the Company for federal income tax
purposes and shall be allocated among the Members as follows:
(a) Net Losses shall be allocated among the Members
as follows:
(i) First, to the Members in a manner that
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corresponds, in reverse chronological order, to the
allocations of Net Profits previously made, without
duplication, pursuant to Section 7.1(b);
(ii) Second, to C&D until C&D's Adjusted
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Capital Account balance has been reduced to zero;
(iii) Third, to the Xxxxx Member until the
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Xxxxx Member's Adjusted Capital Account balance has
been reduced to zero; and
(iv) Fourth, the balance of any Net Losses
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to all Members in accordance with their Equity
Interests Percentage;
(b) Except as otherwise provided in this Article VII,
Net Profits shall be allocated among the Members as follows:
(i) First, to the Members in a manner that
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corresponds, in reverse chronological order, to the
allocations of Net Losses previously made, without
duplication, pursuant to Section 7.1(a); and
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(ii) Second, to the Members proportionately
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in accordance with their respective Equity Interests
Percentage."
(g) Section 13.1 of the LLC Agreement is hereby deleted in
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its entirety and replaced with the following:
"Section 13.1 Debt Incurrence by C&D. Following the Closing
Date, without the prior consent of the Xxxxx Member, C&D shall
not incur any C&D Indebtedness unless (i) at the time of
incurrence and after giving effect thereto, the ratio of C&D
Consolidated Total Debt to C&D Consolidated EBITDA for the
last four fiscal quarters (treating any such indebtedness to
be incurred and giving pro forma effect to any acquisitions
and synergies related thereto, if any (in a manner consistent
with Regulation S-X) as if such incurrence or acquisition took
place on the first day of such four-quarter period) is less
than 4.5:1.0 or (ii) C&D provides to the Xxxxx Member a letter
of credit or other reasonably satisfactory credit support from
a major money center financial institution in an amount equal
to the amount of the Xxxxx Initial Contribution, less the
Excess Contribution Balance."
Section 3. No Other Changes. Except as expressly amended
hereby, the LLC Agreement shall continue in full force and effect in accordance
with the provisions thereof on the date hereof. From and after the date on which
this Amendment becomes effective, the terms "Agreement," "this Agreement,"
"herein," "hereinafter," "hereto," and words of similar import used in the LLC
Agreement shall, unless the context otherwise requires, mean and refer to the
LLC Agreement as amended hereby.
Section 4. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THE PARTIES SUBJECT HERETO SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OR ANY
OTHER RULE, PRINCIPLE OR LAW THAT WOULD MAKE THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF DELAWARE APPLICABLE HERETO.
Section 5. Severability. The invalidity or unenforceability
of any provision of this Amendment in any jurisdiction shall not affect the
validity, legality or enforceability of the remainder of this Amendment in such
jurisdiction or the validity, legality or enforceability of this Amendment,
including any such provision,
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in any other jurisdiction, it being intended that all rights and obligations of
the parties hereunder shall be enforceable to the fullest extent permitted by
law.
Section 6. Counterparts. This Amendment may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same Amendment.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each Member has duly executed this Amendment as of
the day first above written.
CHURCH & XXXXXX CO., INC.
By: _______________________________
Name:
Title:
XXXXX PROTECTION VENTURE, LLC
By: _______________________________
Name:
Title:
