Exhibit 3.17
LIMITED LIABILITY COMPANY AGREEMENT
OF
ARMKEL DIAGNOSTICS, LLC
DATED AS OF SEPTEMBER 6, 2001
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMRKEL DIAGNOSTICS, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of Arkmel
Diagnostics, LLC (the "Company"), dated as of this 6th day of September,
2001, by Armkel, LLC, a Delaware limited liability company, as the sole member
of the Company (the "Member").
RECITAL
The Member has formed the Company as a limited liability company under the
laws of the State of Delaware and desires to enter into a written agreement, in
accordance with the provisions of the Delaware Limited Liability Company Act and
any successor statute, as amended from time to time (the "Act"), governing the
affairs of the Company and the conduct of its business.
ARTICLE I
THE LIMITED LIABILITY COMPANY
Section I.1 Formation. The Member has previously formed the Company as a
limited liability company pursuant to the provisions of the Act. A Certificate
of Formation for the Company (the "Certificate of Formation") has been filed in
the Office of the Secretary of State of the State of Delaware in conformity with
the Act.
Section I.2 Name. The name of the Company shall be "Armkel Diagnostics,
LLC" and its business shall be carried on under such name or any fictitious name
or names selected by the Member from time to time, provided that any such name
reflects the Company's status as a limited liability company or is otherwise
permitted by applicable law.
Section I.3 Business Purpose. The Company is formed for the purpose of
engaging in any lawful business, purpose or activity for which limited liability
companies may be formed under the Act.
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Section I.4 Powers. The Company shall possess and may exercise all the
powers and privileges granted by the Act or by any other law or by this
Agreement, together with any powers incidental thereto, so far as such powers
and privileges are necessary or convenient to the conduct, promotion or
attainment of the business purposes or activities of the Company.
Section I.5 Registered Office and Agent. The location of the registered
office of the Company shall be 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
The Company's registered agent at such address shall be Corporation Trust
Company. The Member may, from time to time, change the Company's registered
office or registered agent, and shall forthwith amend the Certificate of
Formation to reflect such change.
Section I.6 Term. The existence of the Company commenced on the date of the
filing of the Certificate of Formation in the Office of the Secretary of State
of the State of Delaware in accordance with the Act and, subject to the
provisions of Articles VII and IX below, the Company shall have perpetual
existence.
Section I.7 Principal Place of Business. The principal place of business of
the Company shall be at such location as the Member may, from time to time,
select.
Section I.8 Title to Company Property. Legal title to all property of the
Company shall be held, vested and conveyed in the name of the Company and no
real or other property of the Company shall be deemed to be owned by the Member
individually. The Common Interests (as hereinafter defined) of the Member shall
constitute personal property.
Section I.9 Business Transactions of the Member with the Company. In
accordance with Section 18-107 of the Act, the Member may lend money to, borrow
money from, act as a surety, guarantor or endorser for, guarantee or assume one
or more obligations of, provide collateral for, and transact other business
with, the Company and, subject to applicable law, shall have the same rights and
obligations with respect to any such matter as a Person who is not a Member.
Section I.10 Fiscal Year. The fiscal year and tax year of the
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Company (the "Fiscal Year") for financial statement purposes shall end on
December 31 of each year, or such other date as may be determined by the Member
from time to time or otherwise required under applicable law.
ARTICLE II
THE MEMBER
Section II.1 The Member. The name and address of the Member is as follows:
Name Address
---- -------
Armkel, LLC 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Section II.2 Liability of the Member. All debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the Company, and the
Member shall not be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a member.
Section II.3 Member Meetings.
(a) Actions by the Member; Meetings. The Member may approve a matter or
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take any action at a meeting or without a meeting by the written consent of the
Member pursuant to subparagraph (b) below.
(b) Action by Written Consent. Any action may be taken by the Member
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without a meeting if authorized by the written consent of the Member. In no
instance where action is authorized by written consent of the Member will a
meeting of the Member be called or notice be given. However, a copy of the
action taken by written consent shall be filed with the records of the Company.
Section II.4 Power to Bind the Company. The Member (acting in its capacity
as such) shall have the authority to bind the Company to any third party with
respect to any matter.
Section II.5 Admission of Members. New members shall be admitted only upon
the approval of the Member.
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ARTICLE III
MANAGEMENT
Section III.1 Management by Member. The management of the Company is fully
reserved to the Member, and the Company shall not have "managers," as that term
is used in the Act. The powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed under
the direction of, the Member, who shall make all decisions and take all actions
for the Company. In managing the business and affairs of the Company and
exercising its powers, the Member shall act through resolutions adopted in
written consents. Decisions or actions taken by the Member in accordance with
this Agreement shall constitute decisions or action by the Company and shall be
binding on the Company. Notwithstanding the foregoing, the Member shall not take
any action in violation of the Limited Liability Company Agreement of Armkel,
LLC, dated as of August 27, 2001, as such agreement may be amended from time to
time.
Section III.2 Officers. The Member from time to time may appoint such
officers as it may deem advisable, each of whom shall have such title, hold
office for such period, have such authority and perform such duties as the
Member may determine in its sole discretion, including the authority to execute
documents on behalf of the Company. The Member from time to time may delegate to
one or more officers the power to appoint any such other officers and prescribe
their respective rights, terms of office, authorities and duties.
ARTICLE IV
CAPITAL STRUCTURE AND CONTRIBUTIONS
Section IV.1 Capital Structure. The capital structure of the Company shall
consist of one class of common interests (the "Common Interests"). All Common
Interests shall be identical with each other in every respect.
Section IV.2 Capital Contributions. From time to time, the Member may
determine that the Company requires capital and may make capital contributions
in an amount determined by the Member. A capital account shall be maintained for
the
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Member, to which contributions and profits shall be credited and against which
distributions and losses shall be charged.
ARTICLE V
PROFITS, LOSSES AND DISTRIBUTIONS
Section V.1 Profits and Losses. For financial accounting and tax purposes,
the Company's net profits or net losses shall be determined on an annual basis
in accordance with the manner in which profit or loss is determined for federal
income tax purposes. In each year, profits and losses shall be allocated
entirely to the Member.
Section V.2 Distributions. The Member shall determine profits available for
distribution and the amount, if any, to be distributed to the Member, and shall
authorize and distribute on the Common Interests, the determined amount when, as
and if declared by the Member. The distributions of the Company shall be
allocated entirely to the Member.
Section V.3 Withholding Taxes. The Company is authorized to withhold from
distributions to the Member, or with respect to allocations to the Member, and
to pay over to a federal, state or local government, any amounts required to be
withheld pursuant to the Internal Revenue Code of 1986, as amended, or any
provisions of any other federal, state or local law. Any amounts so withheld
shall be treated as having been distributed to the Member pursuant to this
Article V for all purposes of this Agreement, and shall be offset against the
current or next amounts otherwise distributable to the Member.
ARTICLE VI
ACCOUNTS; TAX MATTERS
Section VI.1 Books. The Member shall cause to be maintained complete and
accurate books of account of the Company's affairs at the Company's principal
place of business. Such books shall be kept on such method of accounting as the
Member shall select. The Company's accounting period shall be as determined by
the Member.
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Section VI.2 Company Tax Returns. The Member shall cause to be prepared and
timely filed all tax returns required to be filed for the Company. Subject to
Section 5.3, the Member may, in its sole discretion, make or refrain from making
any tax election for the Company that it deems necessary.
Section VI.3 Tax Treatment. To the extent the Member is the sole member of
the Company, (i) it is the intention of the Member that, for income tax
purposes, the Company be treated as an entity that is disregarded as an entity
separate from its owner and (ii) the Member and the Company shall timely make
all necessary elections and filings, if any, for income tax purposes such that
it will not be treated as a separate entity, but, instead, will be treated for
income tax purposes as an entity that is disregarded as an entity separate from
its owner.
ARTICLE VII
EVENTS OF DISSOLUTION
Section VII.1 Events. The Company shall be dissolved upon the occurrence of
any of the following events (each, an "Event of Dissolution"):
(a) The Member votes for dissolution; or
(b) A judicial dissolution of the Company under Section 18-802 of the
Act.
Section VII.2 Continuation. No other event, including the retirement,
withdrawal, insolvency, liquidation, dissolution, insanity, resignation,
expulsion, bankruptcy, death, incapacity or adjudication of incompetency of the
Member, shall cause the existence of the Company to terminate.
ARTICLE VIII
TRANSFER OF INTERESTS IN THE COMPANY
The Member may sell, assign, transfer, convey, gift, exchange or otherwise
dispose of any or all of its Common Interests and any assignee of the Common
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Interests shall be admitted as a member of the Company.
ARTICLE IX
TERMINATION
Section IX.1 Liquidation. In the event that an Event of Dissolution shall
occur, then the Company shall be liquidated and its affairs shall be wound up.
All proceeds from such liquidation shall be distributed in accordance with the
provisions of Section 18-804 of the Act, and all Common Interests in the Company
shall be cancelled.
Section IX.2 Final Accounting. In the event of the dissolution of the
Company, prior to any liquidation, a proper accounting shall be made to the
Member from the date of the last previous accounting to the date of dissolution.
Section IX.3 Distribution in Kind. All or any portion of the Company's
assets may be distributed in kind to the Member in the event the Member
determines that it is in the best interest of the Company.
Section IX.4 Cancellation of Certificate. Upon the completion of the
winding up of the Company and the distribution of the Company's assets, the
Company shall be terminated and the Member shall cause the Company to execute
and file a Certificate of Cancellation in accordance with Section 18-203 of the
Act.
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ARTICLE X
EXCULPATION AND INDEMNIFICATION
Section X.1 Exculpation. Notwithstanding any other provisions of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, none of the Member, or any officers, directors, stockholders, employees,
representatives or agents of the Member, nor any officer, employee,
representative or agent of the Company (individually, a "Covered Person" and,
collectively, the "Covered Persons") shall be liable to the Company or any other
person for any act or omission (in relation to the Company, this Agreement, any
related document or any transaction or investment contemplated hereby or
thereby) taken or omitted by a Covered Person, provided such act or omission
does not constitute fraud, willful misconduct, bad faith or gross negligence.
Section X.2 Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless each Covered Person from and against
any and all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements and other amounts (including reasonable attorneys' fees) arising
from any and all actions, suits or proceedings, whether civil, criminal,
administrative or investigative ("Claims"), in which the Covered Person may be
involved, or threatened to be involved, as a party or otherwise, by reason of
its management of the affairs of the Company or which relates to or arises out
of the Company or its property, business or affairs. A Covered Person shall not
be entitled to indemnification under this Section 10.2 with respect to (i) any
Claim with respect to which such Covered Person has engaged in fraud, willful
misconduct, bad faith or gross negligence or (ii) any Claim initiated by such
Covered Person unless such Claim (or part thereof) (A) was brought to enforce
such Covered Person's rights to indemnification hereunder or (B) was authorized
or consented to by the Member. Whenever any claim shall arise for
indemnification, the Covered Person shall notify the Company of the Claim and,
when known, the facts constituting the basis for such Claim and the amount or
estimate of the amount of the liability arising from such Claim. Within 45 days
of receipt of notice by the Company of a Claim by the Covered Person, the
Company shall satisfy such Claim by the payment of cash to the Indemnified
Persons for the full amount of such Claim. Expenses incurred by a Covered Person
in defending any Claim shall be paid by the Company in advance of the final
disposition of such Claim upon receipt by the Company of an undertaking by or on
behalf of such Covered Person to repay such amount if it shall be ultimately
determined that such Covered Person is not entitled to be indemnified by the
Company as authorized by this Section 10.2.
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Section X.3 Amendments. Any repeal or modification of this Article X by the
Member shall not adversely affect any rights of such Covered Person pursuant to
this Article X, including the right to indemnification and to the advancement of
expenses of a Covered Person existing at the time of such repeal or modification
with respect to any acts or omissions occurring prior to such repeal or
modification.
ARTICLE XI
AMENDMENT TO AGREEMENT
Amendments to this Agreement and to the Certificate of Formation shall be
approved in writing by the Member. An amendment shall become effective as of the
date specified in the approval of the Member or if none is specified as of the
date of such approval or as otherwise provided in the Act.
ARTICLE XII
GENERAL PROVISIONS
Section XII.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAW.
Section XII.2 Headings; Construction. The headings and captions contained
herein are for convenience of reference only and shall not control or affect the
meaning or construction of any of the provisions hereof. All references to
"Article," "Articles" "Section" or "Sections" refer to the corresponding
Article, Articles, Section or Sections of this Agreement unless specifically
noted otherwise.
Section XII.3 No Third-Party Beneficiary. This Agreement is made solely for
the benefit of the Member and no other person shall have any rights, interest,
or claims hereunder or otherwise be entitled to any benefits under or on account
of this Agreement as a third-party beneficiary or otherwise.
Section XII.4 Severability. The invalidity or unenforceability of any
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provision of this Agreement in any jurisdiction shall not affect the validity,
legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, 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 XII.5 Binding Effect. This Agreement shall be binding upon, and
inure to the benefit of, the Member.
Section XII.6 Further Assurances. The Member agrees to do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto may reasonably request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
Section XII.7 Limited Liability Company. The Member intends to form a
limited liability company and does not intend to form a partnership under the
laws of the State of Delaware or any other laws.
Section XII.8 Counterparts. This Agreement 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 Agreement.
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IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Limited Liability Company Agreement as of the day first above written.
ARMKEL, LLC
By: Church & Xxxxxx Co., Inc.
its Member
By: ____________________________
Name:
Title:
By: Xxxxx Protection Venture, LLC
its Member
By: Xxxxx & Company, L.P.
its Manager
By: Xxxxx & Companies, Inc.
its General Partner
By: ____________________________
Name:
Title:
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