Exhibit 3.44
LIMITED LIABILITY COMPANY
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
EAGLEPICHER PHARMACEUTICAL
SERVICES, LLC
THE INTEREST REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY APPLICABLE
STATE LAW. THE INTEREST HAS BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHTECATED IN THE ABSENCE OF (i) AN
EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR (ii) AN OPINION OF COUNSEL SATISFACTORY TO EAGLEPICHER
PHARMACEUTICAL SERVICES, LLC TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT AND SUCH LAWS.
THE INTEREST REPRESENTED HEREBY IS SUBJECT TO THE TERMS OF THIS OPERATING
AGREEMENT.
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
EAGLEPICHER PHARMACEUTICAL SERVICES, LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT (the "Agreement") is made by
the written declaration of EAGLEPICHER TECHNOLOGIES, LLC (the "Member"), the
sole member of EAGLEPICHER PHARMACEUTICAL SERVICES, LLC, a Delaware limited
liability company (the "Company"), and is effective on the date of this
Agreement.
ARTICLE 1
NAME AND PURPOSES
SECTION 1.1 FORMATION. The Member has caused the Company to be organized
as a Delaware limited liability company under the name ChemSyn, LLC by
delivering a Certificate of Formation to the Delaware Secretary of State on
October 8, 2002. The Member filed a Certificate of Amendment to its Certificate
of Formation changing its name to EaglePicher Pharmaceutical Services, LLC with
the Delaware Secretary of State on March 4, 2003.
SECTION 1.2 NAME AND OFFICE. The name of the Company is EaglePicher
Pharmaceutical Services, LLC. The original principal office of the Company shall
be located at 00000 X. 00xx Xxxxxxx, Xxxxxx, Xxxxxx 00000-0000, or such other
place as the Member may from time to time determine.
SECTION 1.3 PURPOSE. The Company may engage in any lawful act or activity
for which a limited liability company may be formed under the Act.
SECTION 1.4 TERM. The duration of the Company shall be perpetual.
SECTION 1.5 AGENT. The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware, shall be the original
statutory agent of the Company upon whom any process, notice or demand may be
served.
SECTION 1.6 DEFINITIONS. Attached to this Agreement is Exhibit A, which
defines certain terms used in this Agreement and which is incorporated by
reference into this Agreement.
SECTION 1.7 SINGLE MEMBER LIMITED LIABILITY COMPANY; FEDERAL INCOME LAX
STATUS. Upon the execution of this Agreement, the Company has only one Member.
For federal income tax purposes under the Code: (a) the Company shall be
disregarded as an entity separate from its owner while the Company has only one
Member; or (b) treated a partnership if the Company has two or more Members. At
such time as the Company has two or more Members, this Agreement shall be
amended to include such provisions as the Members deem necessary to: (a)
allocate rights and obligations between or among the Members; and (b) properly
allocate,
2
profits, losses and other tax attributes in a manner consistent with the
requirements of the Code and any regulations promulgated under the Code.
ARTICLE 2
CAPITAL CONTRIBUTIONS AND UNITS
SECTION 2.1 CAPITAL CONTRIBUTIONS.
(A) INITIAL CONTRIBUTION. The Member has made, or will make within
ten (10) days of the date of this Agreement, an initial Capital Contribution to
the Company of the property described in Exhibit B attached hereto and which is
incorporated herein by reference.
(B) ADDITIONAL CONTRIBUTIONS.
(1) The Member shall not be required to make additional
Capital Contributions, but may do so at his sole option.
(2) In the event that additional funds in excess of loan
proceeds and the amounts theretofore contributed by the Member are
required by the Company, the Member may make additional Capital
Contributions or attempt to acquire the additional funds through any
other method determined by the Member to be prudent in the
circumstances. In this regard, the Member may cause the Company to: (i)
attempt to borrow funds; (ii) sell authorized but unissued Units to
Persons who are not Members prior to such sale of Units, upon such
terms and conditions as shall be determined by the Member, in his sole
discretion; or (iii) take other action to generate additional funds.
(C) The Member will, at the Company's reasonable request from time
to time and without further consideration, execute arid deliver or cause to he
executed and delivered to the Company such other instruments of sale, transfer,
conveyance, assignment and confirmation (including, without limitation,
additional assignments suitable for recording with any applicable governmental
agency) and take such other action as the Company may reasonably request so as
to fully, effectively and completely sell, assign, transfer to and vest in the
Company title to and possession of the property contributed to the Company
described in Exhibit B attached hereto.
SECTION 2.2 UNITS.
(A) ORIGINAL ISSUANCE. There shall be issued to the Member one
hundred (100) Units.
(B) ADDITIONAL UNITS.
(1) If there is more than one Member and one or more Members
makes an additional Capital Contribution, the Company shall issue
additional Units to such Members in return for such additional Capital
Contribution. The number of additional Units to be issued shall be
determined by dividing (i) the
3
dollar amount of the Capital Contribution, by (ii) the per Unit value
as of the date of the such contribution, as established for such
transaction(s) by the Member.
(2) If the Company elects to raise additional funds by selling
authorized but unissued Units to Persons who are not Members prior to
such sale of Units, there shall be issued to such Persons in return for
their Capital Contributions such number of Units as may be determined
by the Member.
(C) NUMBER OF UNITS. The Company is authorized to issue up to
five hundred (500) Units. The Member may increase tile number of authorized
Units.
ARTICLE 3
RIGHTS AND OBLIGATIONS OF THE MEMBER
SECTION 3.1 LIMITATION OF LIABILITY. Except as otherwise required by law,
the Member shall not be liable beyond the Member's Capital Contributions for any
debts, losses or any liability of the Company or of its employees or agents.
SECTION 3.2 COMPANY BOOKS. The Company shall maintain and preserve, during
the term of the Company, and for five (5) years thereafter, all accounts, books,
and other relevant Company documents, including those documents required to be
maintained by the Act. Upon reasonable request, the Member shall have the right,
during ordinary business hours, to inspect and copy Company documents at his
expense.
SECTION 3.3 ASSIGNMENT. Except for limitations on transfer imposed by
federal and state securities laws, the Member may assign, pledge or otherwise
transfer his Units to any Person upon such terms and conditions as he, in his
sole discretion, may determine.
SECTION 3.4 MEMBER HAS NO EXCLUSIVE DUTY TO THE COMPANY. The Member may
have other business interests and may engage in other activities in addition to
those relating to the Company. The Company (and if there is more than one
Member, the other Members) shall not have any right, by virtue of this
Agreement, to share in such other investments or activities of the Member or to
the income or proceeds derived therefrom. The Member shall incur no liability to
the Company as a result of engaging in any other business or venture.
ARTICLE 4
ACTIONS OF THE MEMBER
Any action that may be authorized or taken at a meeting of members of a
limited liability company organized under the Act may be authorized or taken
without a meeting with the affirmative vote or approval of, and in a writing or
writings signed by, the Member, which writing or writings shall be filed with or
entered upon the records of the Company.
ARTICLE 5
MANAGEMENT BY MEMBER
4
The Member has the power and authority to cause the Company to conduct its
business in the ordinary course and to bind the Company in the ordinary coarse
of its business, including, without limitation, the following:
(a) approve the acquisition, disposition, purchase, sale,
exchange, or liquidation, in whole or in part, of the business, assets,
or property of the Company;
(b) authorize the making, modification, amendment, or
termination of any agreement with the Member(s) or an affiliate of the
Member(s);
(c) authorize any distribution to the Member(s);
(d) change the fiscal year of the Company or make or modify
any tax elections as the Member believes to be in the best interests of
the Company and the Member(s);
(e) approve any change of the location of the headquarters of
the Company;
(1) open, conduct, and close checking, savings, custodial, and
other accounts on behalf of the Company in such banks or other
financial institutions as the Member may select from time to time;
(g) negotiate, enter into, execute, and exercise the Company's
rights under any and all contracts necessary, desirable, or convenient
with respect to the business and affairs of the Company;
(b) execute any notifications, statements, reports, returns,
registrations, or other filings that are necessary or desirable to he
filed with any local, state, or Federal agency, commission, or
authority, including, without limitation, any registration of
securities with any state or Federal securities Commission, and appear
before such agency, commission, or authority on behalf of the Company;
(i) purchase or bear the cost of any insurance covering the
potential liabilities of the Company, Member, any Officer or employee
of the Company, and any other Person acting on behalf of the Company;
(j) commence, defend, or settle litigation pertaining to the
Company, its business or assets;
(k) employ accountants, attorneys, contractors, brokers,
investment managers, engineers, consultants or other persons, firms,
corporations, or entities on such terms and for such compensation as it
determines is proper, including, without limitation, persons and
entities who may be the Member(s) or affiliates, or who perform
services for, or have business, financial, family, or other
relationships with, the Member(s), or any officer or employee; and
5
(1) enter into, make, and perform such contracts, agreements,
and other undertakings, to execute, acknowledge, and deliver such
instruments, and to do such other acts, as it may deem necessary or
advisable for, or as may be incidental to, the conduct of the business
contemplated by this Article 5, including, without limitation,
contracts, agreements, undertakings, and transactions with the
Member(s) or with any other person, firm, or corporation which is an
affiliate or which performs services for or has any business,
financial, family, or other relationship with the Member(s).
ARTICLE 6
OFFICERS
SECTION 6.1 GENERAL. The Member may, in its discretion, elect such
officers and assistant officers as the Member may from time to time determine.
The officers shall perform such duties as determined by the Member. The Member
may, in its discretion, choose not to elect officers of the Company.
SECTION 6.2 ELECTION AND TERM OF OFFICE. The officers of the Company, if
any, shall be elected at such frequency as determined by the Member, and each
officer shall hold office until his or her successor shall have been duly
elected and shall have qualified or until his or her death or until such officer
shall resign or shall have been removed from office in the manner hereinafter
provided.
SECTION 6.3 REMOVAL. Any officer may be removed by the Member at any time,
with or without cause, but such removal shall he without prejudice to the
contract rights, if any, of the Person so removed. Election or appointment of an
officer shall not of itself create contractual rights.
ARTICLE 7
INDEMNIFICATION
The Company shall indemnify the Member to the full extent permitted under
the Act. The Company may, to such extent and in such manner as determined by the
Member, but in no extent greater than is permitted under the Act, indemnify its
employees and other agents permitted to be indemnified by the Act.
ARTICLE 8
TERMINATION OF THE COMPANY
SECTION 8.1 CEASING TO BE MEMBER. A Member shall cease to be a Member
only: (a) upon the voluntary transfer or assignment of all of such Member's
Interest in the Company; or (b) to the extent that a written limited liability
company agreement cannot provide otherwise, an event which, under the Act,
terminates the continued membership of a member of a Delaware limited liability
company.
6
SECTION 8.2 EVENTS CAUSING DISSOLUTION. Tile Company shall dissolve, wind
up and terminate only upon: (a) the written consent of tile Member, (b) as long
as the Company has only one Member, the withdrawal of that Member, or (c) any
other occurrence which, under the Act, causes the dissolution of a Delaware
limited liability company and which cannot be superseded by a written operating
agreement. As long as the Company has one Member, the withdrawal of a Member
shall not cause a dissolution of the Company, and after such a withdrawal, the
remaining Member(s) may continue to operate the business of the Company.
SECTION 8.3 PROCEDURE ON DISSOLUTION. Upon dissolution of the Company
under Section 8.2, the Member or its designee shall proceed to liquidate and
wind up the business of the Company. Upon the winding up of the Company, the
business of the Company may be continued in order to maximize the Company's
value as a going concern for eventual sale. The Company, in lieu of selling all
or any of the Company assets, may convey the assets in kind to the Member. The
Company assets and the proceeds of any liquidation sale shall be applied and
distributed at the closing of any sale in the following order of priority:
(A) to the payment of all debts and liabilities of the Company
and all expenses of liquidation;
(B) to the setting up of such reserves as the Member may deem
necessary for any contingent liabilities of the Company. Any reserves shall be
deposited with an escrow agent, to be applied to the discharge of any contingent
liabilities, and, at the expiration of whatever period the Member may deem
advisable, the balance shall be distributed as provided in clause (c) below; and
(C) the balance, if any, shall be distributed to the Member.
ARTICLE 9
FISCAL MATTERS
SECTION 9.1 BOOKS AND RECORDS. The Member shall maintain full and accurate
books of the Company at the Company's principal place of business, showing all
receipts and expenditures, assets and liabilities, profits and losses, and all
other records necessary for recording the Company's business and affairs. The
books of the Company shall be kept on either a cash or an accrual basis as
determined by the Member. The Member and his duly authorized representatives
shall at all times during regular business hours have access to and may inspect
and copy any of such books and records.
SECTION 9.2 COMPANY YEAR. The annual accounting period of the Company
shall end on December 31.
SECTION 9.3 COMPANY BANK ACCOUNTS. The Member shall receive all moneys of
the Company and shall deposit the same in one or more banking accounts. All
expenditures by the Member shall be made by checks drawn against the Company
accounts. Withdrawals from Company accounts shall be made upon the signature of
such Persons as the Member determines is in the best interest of the Company.
7
SECTION 9.4 ACCOUNTING DECISIONS. All decisions as to accounting matters,
except as specifically provided to the contrary herein, shall be made by the
Member.
ARTICLE 10
MEMBER REPRESENTATION
SECTION 10.1 REPRESENTATIONS AND WARRANTIES OF MEMBER. In connection with
the Member's acquisition of an interest in the Company, the Member represents,
warrants and covenants as follows:
(A) the Units were not offered or sold to the Member by means of
any form of general solicitation, or general advertising, or publicly
disseminated advertisements or sales literature, and the Member is not aware of
any offers or sales made to other persons by such means;
(B) the Units of the Company being acquired by the Member are
being acquired by the Member, only for investment, and not with a view to a
distribution or subsequent offering of such Units;
(C) the offering of the Units has not been registered with any
federal or state agency partially in reliance upon these representations:
(D) the Units purchased hereunder were issued in a transaction
believed to be exempt from the registration provisions of the Securities Act of
1933, as amended, (the "Securities Act"), pursuant to Section 3(b) and or 4(2)
thereof and/or Regulation D promulgated thereunder, and in a transaction
believed to be exempt from the registration and/or qualification provisions of
the securities laws of the states in which they were sold;
(E) there is no public market for the Units and the Member must
bear the risk of an investment in the Units indefinitely;
(F) the Units cannot be resold or otherwise disposed of and must
be held indefinitely unless they are subsequently registered under the
Securities Act and appropriate state securities laws or unless an exemption from
registration is available, and the Company is and will be under no obligation to
register any sale or other transfer of the Units or to comply with any exemption
available for resale of the Units: and
(G) the Member has been involved in the organization of the
Company.
ARTICLE 11
GENERAL PROVISIONS
SECTION 11.1 NOTICES. Except as otherwise provided in this Agreement, any
and all notices, consents, waivers, requests, votes or other instruments or
communications provided for under this Agreement shall be in writing, signed by
the party giving the same and shall be
8
deemed properly given only if hand delivered or sent by overnight courier or
registered or certified United States mail, postage prepaid, addressed: (a) in
the case of the Company, to the Company, at the principal office of the Company,
(b) in the case of the Member to the Member at his, her or its address set forth
in the records of the Company. The Member may, by notice to the Company, specify
any other address for the receipt of such instruments or communications.
SECTION 11.2 APPLICABLE LAW. This Agreement and the rights of the Member
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware.
SECTION 11.3 SEPARABILITY. In case any one or more of the provisions
contained in this Agreement or any application thereof shall be contrary to a
provision of the Act which cannot be altered by a written operating agreement,
or otherwise be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and any
other application thereof shall not in any way be affected or impaired thereby.
SECTION 11.4 BINDING EFFECT. Except as herein otherwise provided to the
contrary, this Agreement shall be binding upon, and inure to the benefit of the
Member and his respective heirs, executors, administrators, successors and
permitted assigns.
SECTION 11.5 AUTHORITY TO AMEND. Amendments to this Agreement shall
require the written approval of tile Member.
IN WITNESS WHEREOF, the Member has signed this Agreement as of March 4,
2003.
MEMBER:
EAGLE-PICHER TECHNOLOGIES, LLC
By: /s/ Xxxxx X. Kitchen
---------------------------------------
9
EXHIBIT A
DEFINED TERMS
Capitalized words and phrases used in this Agreement have the following
meanings:
1. "Act" means the Delaware Limited Liability Company Act as amended from
time to time (or any corresponding provisions of succeeding law).
2. "Agreement" or "Operating Agreement" or "Limited Liability Company
Agreement" means this Limited Liability Company Operating Agreement as amended
from time to time.
I "Capital Contribution" means, with respect to the Member, the amount of
money and the value of any property (other than money) contributed to the
Company by the Member, as determined by the Company.
4. "Code" means the Internal Revenue Code of 1986, as amended from time to
time (or any corresponding provisions of succeeding law).
5. "Company" means EaglePicher Pharmaceutical Services, LLC and the
limited liability company continuing the business of this Company in the event
of dissolution as herein provided.
6. "Member(s)" means Eagle-Picher Technologies, LLC or its assignee or
transferee.
7. "Person" means any individual, partnership, corporation, trust, limited
liability company or other entity.
8. "Unit(s)" means one or more of the units issued to a Member
representing an interest in the Company as described in this Agreement.
EXHIBIT B
CAPITAL CONTRIBUTIONS
All of the assets, properties and rights (real, personal and mixed,
tangible and intangible) of the ChemSyn, LLC division of Eagle-Picher
Technologies, LLC as of November 30, 2002.
