Exhibit 3.12
LIMITED LIABILITY COMPANY AGREEMENT
OF
WARD’S NATURAL SCIENCE ESTABLISHMENT, LLC
This Limited Liability Company Agreement (this “Agreement”) of Ward’s Natural Science Establishment, LLC (the “Company”), effective as of January 1, 2006, is entered into by VWR International, Inc., a Delaware Corporation, as the sole member (the “Sole Member”).
WHEREAS, Ward’s Natural Science Establishment, Inc. (the “Corporation”), was first incorporated in the State of Delaware upon the filing of its original certificate of incorporation on March 16, 1970, and the jurisdiction immediately prior to the adoption of this Agreement is Delaware due to the conversion to a Delaware limited liability company on December 28, 2005, effective January 1, 2006, pursuant to Section 18-214 of the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), as amended from time to time (the “Act”), and Section 266 of the Delaware General Corporation Law (the “Conversion”).
ARTICLE I
NAME, PURPOSE, ETC.
Section 1.1 Name. The name of the limited liability company hereby formed is Ward’s Natural Science Establishment, LLC (the “Company”). The Company may do business under that name and, as permitted by applicable law, under any other name determined from time to time by the Board (as defined below).
Section 1.2 Purpose. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing.
Section 1.3 Powers of the Company. Subject to any limitations set forth in this Agreement, the Company shall have the power and authority to take any and all actions necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purposes set forth in Section 1.2.
Section 1.4 Term. The term of the Company shall be deemed pursuant to § 18-214(d) of the Act to have commenced on March 16, 1970, the date the Corporation was first incorporated in the State of Delaware, and shall continue until the Company is dissolved pursuant to the provisions of Section 6.1 of this Agreement.
Section 1.5 Registered Office. The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The Company may also have offices at such other places within or without the State of Delaware as the Directors (as defined below) may from time to time designate or the business of the Company may require.
Section 1.6 Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.
Section 1.7 Qualification in Other Jurisdictions. Any authorized person of the Company shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
Section 1.8 Fiscal Year. The fiscal year of the Company (the “Fiscal Year”) shall be the calendar year.
Section 1.9 Taxation. The Company shall not be, and the Member and the Board shall not permit the Company to elect to be, treated as an association taxable as a corporation for U.S. federal, state or local income tax purposes, including without limitation by electing to treat the Company as an association taxable as a corporation under Treasure Regulations section 301.7701-3(a) or any corresponding provision of state or local law.
Section 1.10 Certain Ratified Actions. Without in any way limiting the generality of the foregoing or anything else contained in this Agreement or in any other document, Jon Michael Colyer, is hereby designated as an authorized person, within the meaning of the Act and the execution and filing of the Certificate of Formation of the Company effective on January 1, 2006, with the Secretary of State are hereby ratified and confirmed.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Generally. The business and affairs of the Company shall be managed by or under the direction of a committee of managers of the Company (the “Board”) consisting of at least two natural persons designated as directors (the “Directors”) as provided below; and until further action is taken, the number of Directors shall be three. The Board shall have discretion to manage and control the business and affairs of the Company, to make decisions affecting the business and affairs of the Company, and to take actions as it deems necessary or appropriate to accomplish the purposes of the Company and to exercise all of the power and authority that limited liability companies may take under the Act, provided, however, that there shall be reserved to the Member the powers that, under the Delaware General Corporation Law, are reserved to the stockholders of a corporation organized under laws of the State of Delaware.
Section 2.2 Election of Board. The Directors shall be chosen by the Member. The initial Directors of the Company will be as set forth on Annex A hereto. Each Director shall hold office until a successor is selected by the Member or until such
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Director’s death, resignation or removal. Each Director is hereby designated as a “manager” (within the meaning of the Act) of the Company.
Section 2.3 Meetings of the Board. The Board shall meet from time to time to discuss the business of the Company. The Board may hold meetings either within or without the State of Delaware. Meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board or the Member. Any Director may call a meeting of the Board on three days’ notice to each other Director, either personally, by telephone, by facsimile or by any other similarly timely means of communication.
Section 2.4 Quorum and Acts of the Board. At all meetings of the Board, a majority of the Directors then in office shall constitute a quorum for the transaction of business. Except as otherwise provided in this Agreement, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if a majority of the members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.
Section 2.5 Electronic Communications. Members of the Board, or any committee designated by the Board, may participate in a meeting of the Board, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 2.6 Committees of Directors. The Board may, by resolution passed by unanimous consent of the Directors, designate one or more committees. Such resolution shall specify the duties and quorum requirements of such committees, each such committee to consist of one or more of the Directors. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.
Section 2.7 Compensation of Directors. The Board shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of
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attendance at such meeting of the Board and may be paid a fixed sum for attendance at each meeting of the Board or a stated salary as Director. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. No Director who is an employee of the Member or the Company shall receive compensation for his or her service as a Director.
Section 2.8 Resignation. Any Director may resign at any time by giving written notice to the Company. The resignation of any Director shall take effect upon receipt of such notice or at such later time as shall be specified in the notice; and, unless otherwise specified in the notice, the acceptance of the resignation by the Company, the Members or the remaining Directors shall not be necessary to make it effective.
Section 2.9 Removal of Directors. If at any time the Member desires to remove, with or without cause, any Director, the Member shall have the power to take all such actions promptly as shall be necessary or desirable to cause the removal of such Director. Any vacancy caused by any such removal may be filled in accordance with Section 2.10.
Section 2.10 Vacancies. If any vacancies shall occur in the Board, by reason of death, resignation, removal or otherwise, the Directors then in office shall continue to act, and such vacancies may be filled by a majority of the Directors then in office, although less than a quorum. A Director selected to fill a vacancy shall hold office until his or her successor has been selected and qualified or until his or her earlier death, resignation or removal.
Section 2.11 Directors as Agents. The Directors, to the extent of their powers set forth in this Agreement, are agents of the Company for the purpose of the Company’s business, and the actions of the Directors taken in accordance with such powers shall bind the Company.
ARTICLE III
OFFICERS
Section 3.1 Executive Officers. The officers of the Company shall be a Chief Executive Officer, a President, a Treasurer and a Secretary, all of whom shall be elected annually by the Board, and shall hold office during the pleasure of the Board. In addition, the Board may elect one or more Vice-Presidents, Assistant Treasurers, or Assistant Secretaries. All vacancies occurring among any of the officers shall be filled by the Board. Any officer may be removed and/or replaced at any time by the affirmative vote of a majority of the Directors present at a regular meeting of Directors or at a special meeting of Directors called for the purpose.
Section 3.2 Other Officers. The Board may appoint, remove and replace such other officers, including assistant officers and agents, with such powers and duties as it shall deem necessary. The Board may by resolution authorize the Chief Executive Officer to appoint and remove such other officers.
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Section 3.3 The Chief Executive Officer. The Chief Executive Officer shall be selected from among the directors and shall preside when present at all meetings of the Board of Directors, and he or she shall have and perform such other duties as from time to time may be assigned by the Board of Directors, if any. When the Board is not in session, the Chief Executive Officer shall have general management and control of the business and affairs of the Company.
Section 3.4 The President. The President shall, in the absence or disability of the Chief Executive Officer, exercise the powers and perform the duties of the Chief Executive Officer, including, but not limited to, presiding at all meetings of the directors, and shall exercise such other powers and perform such other duties as shall be prescribed by the Board.
Section 3.5 The Vice-President. The Vice-President, if any, or if there be more than one, the senior Vice-President as determined by the Board of Directors, shall in the absence or disability of the President, exercise the powers and perform the duties of the President, and each Vice-President shall exercise such other powers and perform such other duties as shall be prescribed by the Board.
Section 3.6 The Treasurer. The Treasurer shall have custody of all funds, securities and evidences of indebtedness of the Company; shall receive and give receipts and acquittances for moneys paid in on account of the Company, and shall pay out of the funds on hand all bills, payrolls, and other just debts of the Company, of whatever nature, upon maturity; shall enter regularly in books to be kept by him for that purpose, full and accurate accounts of all moneys received and paid out by the Treasurer on account of the Company, and shall perform all other duties incident to the office of Treasurer and as may be prescribed by the Board.
Section 3.7 The Secretary. The Secretary shall keep the minutes of all proceedings of the Board of Directors; shall attend to the giving and serving of all notices to the Directors or other notice required by law, or by this Agreement; shall affix the seal of the Company to deeds, contracts and other instruments in writing requiring a seal, when duly signed or when so ordered by the Board of Directors; shall have charge of the certificate books and stock books and such other books and papers as the Board may direct, and shall perform all other duties incident to the office of Secretary.
Section 3.8 Reliance by Third Parties. Any Person dealing with the Company or any Officer may rely upon a certificate signed by the Chief Executive Officer, President, Secretary or any Vice President as to:
(a) the identity of the Chief Executive Officer, President or any Member, Director, or other Officer;
(b) the existence or non-existence of any fact or facts which constitute a condition precedent to acts by the Chief Executive Officer, President, any other Officer, a Director, or the Board, or which are in any other manner germane to the affairs of the Company;
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(c) the Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(d) any act or failure to act by the Company or as to any other matter whatsoever involving the Company or any Member.
Section 3.9 Salaries. The salaries of all officers shall be fixed by the Board of Directors, and the Board has the authority by majority vote to reimburse expenses.
ARTICLE IV
CAPITAL CONTRIBUTIONS AND DISTRIBUTIONS
Section 4.1 Membership Interest. The Company shall have membership interests evidenced by a certificate in the form attached as Annex B. The Company shall issue to the Member a certificate to evidence its membership interest.
Section 4.2 Additional Capital Contributions. The Member shall have the right, but not the obligation, to make capital contributions to the Company in the form of cash, services or otherwise, at the times and in the amounts determined by the Member.
Section 4.3 Distributions. Distributions may be made to the Member at the times and in the aggregate amounts determined by the Board. Notwithstanding anything to the contrary contained herein, the Company, and the Member on behalf of the Company, shall not make a distribution to the Member on account of the interest of the Member in the Company if such distribution would violate § 18-607 of the Act or any other applicable law.
ARTICLE V
BOOKS AND RECORDS; REPORTS
Section 5.1 Maintenance of Books and Records; Accounts and Accounting Method. The Company shall keep or cause to be kept at the address of the Company (or at such other place as the Company shall advise the Member in writing) full and accurate accounts of the transactions of the Company in proper books and records of account which shall set forth all information required by the Delaware Act. Such books and records shall be maintained on the basis of United States generally accepted accounting principles, to the extent that such principles are not inconsistent with the other provisions of this Agreement. Such books and records shall be available, upon three Business Days’ notice to the Company, for inspection and copying at reasonable times during business hours by the Member or its duly authorized agents or representatives for any purpose reasonably related to the Member’s interest as a member in the Company or in connection with a transfer pursuant to the provisions of Section 6.2 of this Agreement.
Section 5.2 Reports. The Member shall have the right, at all reasonable times but in any event only during usual business hours and upon reasonable written notice specifying the purpose of such investigation, to audit, examine and make copies of or extracts from the information and records of the Company described in § 18-305(a) of the
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Act for any purpose reasonably related to the Member’s interest as a member in the Company, provided, however, that the Company shall have the right to withhold any such information pursuant to § 18-305(c) of the Act. Such right may be exercised through any agent or employee of the Member designated by him or by a certified public accountant designated by the Member. The Member shall bear all expenses incurred in any investigation made for the Member’s account pursuant to this Section 5.2 or § 18-305 of the Act.
ARTICLE VI
DISSOLUTION, ASSIGNMENT, TRANSFER
Section 6.1 Dissolution. The Company shall be dissolved upon the earliest to occur of any of the following: (a) the sale, transfer or other disposition of all the assets of the Company, (b) the decision of the Member to dissolve the Company or (c) the entry of a decree of judicial dissolution under § 18-802 of the Act.
Section 6.2 Assignments. The Member shall be permitted to transfer all or part of its interest in the Company to any person or entity that assumes all or such portion of the Member’s obligations under this Agreement.
Section 6.3 Resignation. The Member may only resign from the Company if it has transferred all of its interest in the Company to another person or entity.
Section 6.4 Additional Members. With the consent of the Member, the Board of Directors may admit any person as an additional member of the Company.
ARTICLE VII
LIABILITY, EXCULPATION, INDEMNIFICATION
Section 7.1 Liability of the Member.
(a) Except as otherwise provided by the Act or herein, the 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 of the Company.
(b) Neither the Member nor any of its or the Company’s directors, officers, employees, shareholders, agents or representatives (each, a “Covered Person”), shall be liable to the Company for any loss, liability, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company, except that a Covered Person shall be liable for any loss, liability, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.
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Section 7.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company, a Covered Person acting under this Agreement shall not be liable to the Company for such Covered Person’s good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Covered Person. Whenever in this Agreement a Covered Person is permitted or required to make decisions in good faith, the Covered Person shall act under such standard and shall not be subject to any other or different standard imposed by this Agreement or any relevant provisions of law or in equity or otherwise.
(b) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any person or entity as to matters the Covered Person reasonably believes are within such person’s or entity’s professional or expert competence.
Section 7.3 Indemnification. To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, that any indemnity under this Section 7.3 shall be provided out of and to the extent of Company assets only, and no Covered Person shall have any personal liability on account thereof.
Section 7.4 Expenses. To the extent permitted by applicable law, expenses (including reasonable attorneys’ fees, disbursements, fines and amounts paid in settlement) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding relating to or arising out of their performance of their duties on behalf of the Company may, from time to time and at the discretion of the Board, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall ultimately be determined that the Covered Person is not entitled to be indemnified as authorized in Section 7.3.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendment, Waiver, Etc. This Agreement may not be amended or supplemented, and no waiver of or consent to departures from the provisions hereof shall be effective, unless set forth in a writing signed by the Member.
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Section 8.2 Binding Effect. This Agreement shall be binding upon and inure to the benefit of all parties hereto and their successors and permitted assigns.
Section 8.3 Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.
Section 8.4 Integration. This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
Section 8.5 No Third-Party Beneficiaries. Except as provided in Article VI with respect to the exculpation and indemnification of Covered Persons, nothing in this Agreement shall confer any rights upon any person or entity other than the parties hereto and their successors and permitted assigns.
Section 8.6 Certificates. (a) General. The Member shall be entitled to a certificate representing its interest in the Company, in such form as may from time to time be prescribed by the Board. Such certificate shall be signed by an officer or Member of the Company, which signature may be a facsimile thereof. In case the officer of the Company who has signed or whose facsimile signature has been placed on such certificate shall have ceased to be an officer of the Company before such certificate is issued, it may be issued by the Company with the same effect as if such person were an officer of the Company at the time of its issue. The certificate shall contain a legend with respect to any restrictions on transfer.
(b) Application of Article 8 of the Uniform Commercial Code. The Company hereby irrevocably elects that all interests in the Company shall be securities governed by Article 8 of the Uniform Commercial Code in effect in the State of Delaware. Each certificate evidencing an interest in the Company shall bear the following legend:
“This Certificate evidences membership interest in the Company. Each Company Interest shall constitute a “security” within the meaning of, and shall be governed by, (i) Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware (including, without limitation, the definition of “security” set forth in Section 8-102(a)(15) thereof and any successor provision thereto), and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on the Uniform State Laws and approved by the American Bar Association on February 14, 1995.”
Section 8.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the undersigned, being the sole Member of the Company, intending to be legally bound hereby, has duly executed this Agreement as of the date first above written.
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| By: | /s/ Martin A. Goldman |
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| Name: | Martin A. Goldman | |
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| Title: | Vice President - Global Taxation | |
Limited Liability Company Agreement
Annex A
Directors
Jon Michael Colyer
Scott G. Smith
Greg Cowan
Annex B
CERTIFICATE OF MEMBERSHIP INTEREST
IN
WARD’S NATURAL SCIENCE ESTABLISHMENT, LLC,
a Delaware limited liability company
Certificate Number
Percent ( %)
This certifies that is the owner of percent ( %) of the membership interests (the “Company Interests”) in WARD’S NATURAL SCIENCE ESTABLISHMENT, LLC, a Delaware limited liability company (the “Company”).
This Certificate evidences membership interest in the Company. Each Company Interest shall constitute a “security” within the meaning of, and shall be governed by, (i) Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware (including, without limitation, the definition of “security” set forth in Section 8-102(a)(15) thereof and any successor provision thereto), and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on the Uniform State Laws and approved by the American Bar Association on February 14, 1995.
IN WITNESS WHEREOF, the Sole Member of the Company has heretofore subscribed its name to this Certificate as of the day of , .
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