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Exhibit 3.4
LIMITED LIABILITY COMPANY AGREEMENT
OF
PRESTIGE BRANDS INTERNATIONAL, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT, dated as of March 29, 2004
(this "AGREEMENT"), is adopted, executed and agreed to, for good and valuable
consideration, by the Initial Member. Certain terms used herein are defined in
SECTION 1.6.
ARTICLE I
GENERAL PROVISIONS; CAPITAL CONTRIBUTIONS; DEFINITIONS
Section 1.1 FORMATION. The formation of Prestige Brands
International, LLC (the "LLC") pursuant to and in accordance with the Delaware
Limited Liability Company Act, 6 Del. C. Section 18-101, ET SEQ., as amended
from time to time (the "ACT"), occurred on March 29, 2004. An authorized person,
within the meaning of the Act, has executed, delivered and filed the certificate
of formation of the LLC (the "CERTIFICATE"). Upon the Initial Member's (i)
execution of this Agreement or a counterpart hereof and (ii) making of the
capital contribution required by SECTION 1.5, such Member shall be admitted to
the LLC as its sole initial member.
Section 1.2 NAME. The name of the LLC will be "Prestige Brands
International, LLC" or such other name or names as the Board may from time to
time designate.
Section 1.3 PURPOSE. The LLC's purpose shall be to carry on any
activities which may lawfully be carried on by a limited liability company
organized pursuant to the Act.
Section 1.4 REGISTERED OFFICE; REGISTERED AGENT; PLACE OF
BUSINESS. The registered office of the LLC required by the Act to be maintained
in the State of Delaware shall be the office of the initial registered agent
named in the Certificate or such other office (which need not be a place of
business of the LLC) as the Board may designate from time to time in the manner
provided by law. The registered agent of the LLC in the State of Delaware shall
be the initial registered agent named in the Certificate or such other person or
persons as the Board may designate from time to time in the manner provided by
law. The LLC will maintain an office and principal place of business at such
place or places inside or outside the State of Delaware as the Board may
designate from time to time.
Section 1.5 CAPITAL CONTRIBUTIONS.
(a) The Initial Member shall, promptly following the
execution of this Agreement, contribute to the capital of the LLC the items
set forth on SCHEDULE I. The Board shall amend SCHEDULE I from time to time
to reflect any future capital contribution made by any Participant. Persons
hereafter admitted as Members of the LLC shall make such contributions of
cash (or promissory obligations), property or services to the LLC as shall
be determined by the Board and the Member making the contribution in their
sole discretion at the time of each such admission.
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(b) No Participant shall have any responsibility to
restore any negative balance in his, her or its Capital Account or to
contribute to or in respect of liabilities or obligations of the LLC,
whether arising in tort, contract or otherwise, or return distributions
made by the LLC except as required by the Act or other applicable law. The
failure of the LLC to observe any formalities or requirements relating to
the exercise of its powers or management of its business or affairs under
this Agreement or the Act shall not be grounds for imposing personal
liability on the Participants for liabilities of the LLC.
(c) No interest shall be paid by the LLC on capital
contributions or on balances in Capital Accounts.
(d) A Participant shall not be entitled to withdraw any
part of its Capital Account or to receive any distributions from the LLC
except as provided in ARTICLES III and V; nor shall a Participant be
entitled to make any capital contribution to the LLC other than as
expressly provided herein. Any Participant may, with the approval of the
Board, make loans to the LLC, and any loan by a Participant to the LLC
shall not be considered to be a capital contribution for any purpose and
shall not result in an increase in the amount of the Capital Account of
such Participant.
Section 1.6 DEFINITIONS. For purposes of this Agreement:
"ASSIGNEE" means any person or entity to whom an LLC interest has been
transferred in a Transfer described in SECTION 4.3, unless and until such person
or entity becomes a Member with respect to such LLC interest.
"BOARD" means the Board of Managers.
"BOOK VALUE" means, with respect to any LLC property, the LLC's
adjusted basis for federal income tax purposes, except that the initial Book
Value of any property contributed to the LLC shall be the value of such property
on the date of such contribution, as agreed by the Board and the Member
contributing the property, and the Book Value of any LLC property shall be
adjusted pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) (in
connection with a distribution of such property) or (f) (in connection with a
revaluation of Capital Accounts).
"CAPITAL ACCOUNT" has the meaning set forth in SECTION 2.1.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated thereunder.
"DISPOSE", "DISPOSED", "DISPOSING" or "DISPOSITION" means a sale,
assignment, transfer, exchange, mortgage, pledge, grant of a security interest
or other disposition or encumbrance (including, without limitation, by operation
of law) or the acts thereof.
"EVENT OF WITHDRAWAL" means the death or dissolution of a Member.
"INITIAL MEMBER" means Medtech/Denorex, LLC.
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"LOSSES" for any period means all items of LLC loss, deduction and
expense for such period determined according to SECTION 2.2.
"MAJORITY IN INTEREST" means the Member(s) holding a majority of
Percentage Interests of all Members.
"MANAGERS" means David A. Donnini, Vincent J. Hemmer and Peter C.
Mann, who shall act as the initial Board of Managers, and any Member or other
Person hereafter elected as a manager of the Company as provided in this
Agreement, but does not include any Person who has ceased to be a manager of the
Company.
"MEMBER" means any of the parties identified on SCHEDULE I as a member
or admitted as a member after the date of this Agreement in accordance with the
terms hereof, in each case for so long as such person continues to be a member
hereunder.
"PARTICIPANT" means a Member, a Terminated Member or an Assignee.
"PERCENTAGE INTEREST" means, in respect of each Participant, such
Participant's interest in the income, gains, losses, deductions and expenses of
the LLC as set forth on SCHEDULE I.
"PERSON" means a natural person, partnership (whether general or
limited), limited liability company, trust, estate, association, corporation,
custodian, nominee or any other individual or entity in its own or any
representative capacity.
"PROFITS" for any period means all items of LLC income and gain for
such period determined according to SECTION 2.2.
"TERMINATED MEMBER" means a person who has ceased to be a Member
pursuant to SECTION 4.4.
Section 1.7 TERM. The LLC shall continue until dissolved and
terminated in accordance with ARTICLE V of this Agreement.
Section 1.8 NO STATE-LAW PARTNERSHIP. The Participant(s) intend
that the LLC not be a partnership (including, without limitation, a limited
partnership) or joint venture and that no Participant be a partner or joint
venturer of any other Participant for any purpose (other than federal and state
tax purposes, if applicable); and neither this Agreement nor any other document
entered into by the LLC or any Participant shall be construed to suggest
otherwise. The Participant(s) intend that the LLC shall be treated as a
partnership (provided that the Participant(s) intend that, so long as the LLC
only has one member, then the LLC shall be treated as a disregarded entity) for
federal and, if applicable, state income tax purposes, and that each Participant
and the LLC shall file all tax returns and shall otherwise take all tax and
financial reporting positions in a manner consistent with such treatment.
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ARTICLE II
CAPITAL ACCOUNTS
Section 2.1 CAPITAL ACCOUNTS. A "CAPITAL ACCOUNT" will be
established for each Participant on the books of the LLC and will be adjusted as
follows:
(a) Such Participant's contributions to the capital of
the LLC will be credited to his, her or its Capital Account when received
by the LLC.
(b) At the end of each fiscal year of the LLC and upon
dissolution and winding up of the LLC pursuant to ARTICLE V, Profits for
such period allocated to such Participant pursuant to SECTION 3.2 shall be
credited, and Losses for such period allocated to such Participant pursuant
to SECTION 3.2 shall be debited, as the case may be, to such Participant's
Capital Account.
(c) Any amounts distributed to such Participant will be
debited against his, her or its Capital Account.
(d) Such Participant's Capital Account will otherwise be
adjusted in accordance with Treas. Reg. Section 1. 704-1(b)(2)(iv).
Section 2.2 COMPUTATION OF AMOUNTS. For purposes of computing the
amount of any item of income, gain, loss, deduction or expense to be reflected
in Capital Accounts, the determination, recognition and classification of each
such item shall be the same as its determination, recognition and classification
for federal income tax purposes; provided that
(a) any income that is exempt from Federal income tax
shall be added to such taxable income or losses and any expenditures of the
LLC described in Section 705(a)(2)(B) of the Code or treated as Code
Section 705(a)(2)(B) expenditures pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(i), shall be subtracted from such taxable income or
losses;
(b) if the Book Value of any LLC property is adjusted
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) (in connection
with a distribution of such property) or (f) (in connection with a
revaluation of Capital Accounts), the amount of such adjustment shall be
taken into account as gain or loss from the disposition of such property;
and
(c) if property that is reflected on the books of the LLC
has a Book Value that differs from the adjusted tax basis of such property,
depreciation, amortization and gain or loss with respect to such property
shall be determined by reference to such Book Value.
Section 2.3 DISTRIBUTION IN KIND. To the extent required by the
Code or as otherwise deemed desirable by the Board, if securities are to be
distributed in kind to the Participants pursuant to this Agreement, (i) such
securities shall first be written up or down pursuant to SECTION 2.2(b) to their
value (as determined pursuant to ARTICLE VI as of the date of
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such distribution), (ii) the Capital Accounts of the Participant(s) shall be
adjusted immediately prior to the distribution as if such securities were sold
at their value (as so determined) and (iii) the value of such securities (as so
determined) received by each Participant shall be debited against his, her or
its respective Capital Account at the time of distribution.
ARTICLE III
DISTRIBUTIONS AND ALLOCATIONS
Section 3.1 DISTRIBUTIONS. Distributions of cash or other assets
of the LLC shall be made at such times and in such amounts as the Board may
determine. Unless the Board and the Member(s) determine otherwise, distributions
shall be made to Participants pro rata based on the Percentage Interest held by
each Participant. Notwithstanding any provision to the contrary contained in
this Agreement, the LLC shall not make a distribution to any Participant on
account of his, her or its interest in the LLC if such distribution would
violate Section 18-607 of the Act or other applicable law.
Section 3.2 ALLOCATION OF PROFITS AND LOSSES. Except as may be
required by the Code, each item of income, gain, loss, deduction or expense to
the LLC shall be allocated among the Participant(s) in proportion to the
Percentage Interest held by each Participant.
ARTICLE IV
MANAGEMENT AND MEMBER RIGHTS
Section 4.1 MANAGEMENT BY THE BOARD.
(a) Except for situations in which the approval of the
Members is required by this Agreement or by nonwaivable provisions of
applicable law, and subject to the provisions of Section 4.2, (i) the
powers of the LLC shall be exercised by or under the authority of, and the
business and affairs of the LLC shall be managed under the direction of,
the Board and (ii) the Board may make all decisions and take all actions
for the LLC not otherwise provided for in this Agreement, including the
following:
(i) entering into, making and performing contracts,
agreements and other undertakings binding the LLC that may be
necessary, appropriate or advisable in furtherance of the purposes of
the LLC and making all decisions and waivers thereunder;
(ii) maintaining the assets of the LLC in good order;
(iii) collecting sums due the LLC;
(iv) opening and maintaining bank and investment
accounts and arrangements, drawing checks and other orders for the
payment of money and designating individuals with authority to sign or
give instructions with respect to those accounts and arrangements;
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(v) to the extent that funds of the LLC are available
therefor, paying debts and obligations of the LLC;
(vi) acquiring, utilizing for LLC purposes and disposing
of any asset of the LLC;
(vii) hiring and employing executives, Officers,
supervisors and other personnel;
(viii) selecting, removing and changing the authority and
responsibility of lawyers, accountants and other advisers and
consultants;
(ix) entering into guaranties on behalf of the LLC's
Subsidiaries;
(x) obtaining insurance for the LLC;
(xi) determining Distributions of cash and other
property of the LLC as provided in ARTICLE III;
(xii) establishing reserves for commitments and
obligations (contingent or otherwise) of the LLC; and
(xiii) establishing a seal for the LLC.
(b) Notwithstanding the provisions of Section 4.1(a), the
Board may not cause the LLC to sell, lease, exchange or otherwise Dispose
of (other than by way of a pledge, mortgage, deed of trust or trust
indenture) all or substantially all of the LLC's property and assets (with
or without good will), other than in the usual and regular course of the
LLC's business without obtaining the consent of Members who hold a Majority
in Interest.
Section 4.2 ACTIONS BY THE MANAGERS; COMMITTEES; DELEGATION OF
AUTHORITY AND DUTIES.
(a) The Board may act (i) through meetings and written
consents pursuant to Sections 4.5 and 4.7, (ii) through committees pursuant
to Section 4.2(b) and (iii) through any Manager to whom authority and
duties have been delegated pursuant to Section 4.2(c).
(b) The Board may, from time to time, designate one or
more committees, each of which shall be comprised of at least two Managers.
Any such committee, to the extent provided in such resolution or in the
Certificate or this Agreement, shall have and may exercise all of the
authority of the Board. At every meeting of any such committee, the
presence of a majority of all the members thereof shall constitute a
quorum, and the affirmative vote of a majority of the members present shall
be necessary for the adoption of any resolution. The Board may dissolve any
committee at any time, unless otherwise provided in the Certificate or this
Agreement.
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(c) The Board may, from time to time, delegate to one or
more Persons (including any Manager or officer of the LLC) such authority
and duties as the Board may deem advisable. In addition, the Board may
assign titles (including, without limitation, chairman, chief executive
officer, president, vice president, secretary, assistant secretary,
treasurer and assistant treasurer) to any Managers or other individuals and
delegate to such Managers or other individuals certain authority and
duties. Any number of titles may be held by the same Manager or other
individual. Any delegation pursuant to this Section 4.2(c) may be revoked
at any time by the Board.
(d) Any Person dealing with the LLC, other than a Member,
may rely on the authority of any officer in taking any action in the name
of the LLC without inquiry into the provisions of this Agreement or
compliance herewith, regardless of whether that action actually is taken in
accordance with the provisions of this Agreement.
Section 4.3 NUMBER AND TERM OF OFFICE. The number of Managers on
the Board may be modified from time to time only by resolution of the Board.
Each Manager shall hold office for the term for which he is elected and
thereafter until his successor shall have been elected and qualified, or until
his earlier death, resignation or removal. A Manager need not be a resident of
the State of Delaware.
Section 4.4 VACANCIES; REMOVAL; RESIGNATION. Any Manager position
to be filled by reason of an increase in the number of Managers or by any other
reason shall be filled by the affirmative vote of the Members holding a Majority
in Interest. A Manager elected to fill a vacancy occurring other than by reason
of an increase in the number of Managers shall be elected for the unexpired term
of his predecessor in office. Any Manager may be removed, with or without cause,
only by the affirmative vote of a majority of the Members holding a Majority in
Interest. Any Manager may resign at any time. Such resignation shall be made in
writing and shall take effect at the time specified therein, or if no time is
specified, at the time of its receipt by the remaining Managers. The acceptance
of a resignation shall not be necessary to make it effective, unless expressly
so provided in the resignation.
Section 4.5 BOARD MEETINGS.
(a) A majority of the total number of Managers then
serving on the Board (i.e., excluding any vacancies on the Board) must be
present (including pursuant to SECTION 4.7) in order to constitute a quorum
for the transaction of business of the Board, and except as otherwise
provided in this Agreement, the act of a majority of the Managers present
at a meeting of the Board at which a quorum is present shall be the act of
the Board. A Manager who is present at a meeting of the Board at which
action on any matter is taken shall be presumed to have assented to the
action unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person
acting as secretary of the meeting before the adjournment thereof or shall
deliver such dissent to the LLC immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a Manager who voted in
favor of such action.
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(b) Meetings of the Board may be held at such place or
places as shall be determined from time to time by resolution of the Board.
At all meetings of the Board, business shall be transacted in such order as
shall from time to time be determined by resolution of the Managers.
Attendance of a Manager at a meeting shall constitute a waiver of notice of
such meeting, except where a Manager attends a meeting for the express
purpose of objecting to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
(c) In connection with any meeting of Members, the
Managers may, if a quorum is present, hold a meeting for the transaction of
business immediately after and at the same place as such meeting of the
Members. Notice of such meeting at such time and place shall not be
required.
(d) Regular meetings of the Board shall be held at such
times and places as shall be designated from time to time by resolution of
the Board. Notice of such meetings shall not be required.
(e) Special meetings of the Board may be called by any
Manager on at least 24 hours' notice to each other Manager. Such notice
need not state the purpose or purposes of, nor the business to be
transacted at, such meeting, except as may otherwise be required by law or
provided for in this Agreement.
Section 4.6 APPROVAL OR RATIFICATION OF ACTS OR CONTRACTS BY
MEMBERS. Any Manager in its discretion may submit any act or contract for
approval or ratification at any meeting of the Board, and any act or contract
that shall be approved or be ratified by the Board shall be as valid and as
binding upon the LLC and upon all the Members as if it shall have been approved
or ratified by every Member of the LLC.
Section 4.7 ACTION BY WRITTEN CONSENT OR TELEPHONE CONFERENCE.
Any action permitted or required by the Act, the Certificate or this Agreement
to be taken at a meeting of the Board or any committee designated by the Board
may be taken without a meeting if a consent in writing, setting forth the action
to be taken, is signed by all the Managers or members of such committee, as the
case may be. Such consent shall have the same force and effect as a unanimous
vote at a meeting and may be stated as such in any document or instrument filed
with the Secretary of State of Delaware, and the execution of such consent shall
constitute attendance or presence in person at a meeting of the Board or any
such committee, as the case may be. Subject to the requirements of the Act, the
Certificate or this Agreement for notice of meetings, unless otherwise
restricted by the Certificate, the Managers or members of any committee
designated by the Board may participate in and hold a meeting of the Board or
any committee of Managers, as the case may be, by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in such
meeting shall constitute attendance and presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
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Section 4.8 REIMBURSEMENT. The Managers shall be entitled to be
reimbursed for out-of-pocket costs and expenses incurred in the course of their
service hereunder.
Section 4.9 CONFLICTS OF INTEREST. Subject to the other express
provisions of this Agreement, each Manager, Member and officer of the LLC at any
time and from time to time may engage in and own interests in other business
ventures of any and every type and description, independently or with others
(including ones in competition with the LLC) with no obligation to offer to the
LLC or any other Member, Manager or officer the right to participate therein.
The LLC may transact business with any Manager, Member, officer or affiliate
thereof; provided the terms of those transactions are no less favorable than
those the LLC could obtain from unrelated third parties.
Section 4.10 CHAIRMAN AND VICE CHAIRMAN. The Board shall designate
one of the Managers to serve as Chairman and a different Manager to serve as
Vice Chairman. The Chairman shall preside at all meetings of the Board. If the
Chairman is absent at any meeting of the Board, the Vice Chairman shall preside
over such Board meeting. If the Chairman and Vice Chairman are absent, the
Managers present shall designate a member to serve as interim chairman for that
meeting. Neither the Chairman nor Vice Chairman, except in their capacity as an
Officer, shall have the authority or power to act for or on behalf of the LLC,
to do any act that would be binding on the LLC or to make any expenditure or
incur any obligation on behalf of the LLC or authorize any of the foregoing.
Section 4.11 OFFICERS.
(a) The Board or a Majority in Interest of the Member(s)
may, from time to time, designate one or more persons to be officers of the
LLC. No officer need be a resident of the State of Delaware, a Member or a
Manager. Any officers so designated shall have such authority and perform
such duties as the Board or a Majority in Interest of the Member(s) may,
from time to time, delegate to them. The Board or a Majority in Interest of
the Member(s) may assign titles to particular officers. Unless the Board or
a Majority in Interest of the Member(s) otherwise decides, if the title is
one commonly used for officers of a business corporation formed, the
assignment of such title shall constitute the delegation to such officer of
the authority and duties that are normally associated with that office,
subject to (i) any specific delegation of authority and duties made to such
officer by the Board or a Majority in Interest of the Member(s) pursuant to
the third sentence of this SECTION 4.11(a) or (ii) any delegation of
authority and duties made to one or more Managers pursuant to SECTION
4.2(a). Each officer shall hold office until his successor shall be duly
designated and shall qualify or until his death or until he shall resign or
shall have been removed in the manner hereinafter provided. Any number of
offices may be held by the same individual. The salaries or other
compensation, if any, of the officers and agents of the LLC shall be fixed
from time to time by the Board or a Majority in Interest of the Member(s).
(b) Any officer may resign as such at any time. Such
resignation shall be made in writing and shall take effect at the time
specified therein, or if no time be specified, at the time of its receipt
by the Board or any Manager. The acceptance of a
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resignation shall not be necessary to make it effective, unless expressly
so provided in the resignation. Any officer may be removed as such, either
with or without cause, by the Board whenever in its judgment the best
interests of the LLC shall be served thereby; provided, however, that such
removal shall be without prejudice to the contract rights, if any, of the
individual so removed. Designation of an officer shall not of itself create
contract rights. Any vacancy occurring in any office of the LLC may be
filled by the Board.
Section 4.12 INDEMNIFICATION. The LLC shall fully protect,
indemnify and hold harmless, to the fullest extent permitted under the Act
(including, without limitation, indemnification for negligence, gross
negligence and breach of fiduciary duty, in each case to the extent so
authorized under the Act) as amended from time to time (but, in the case of
any such amendment, only to the extent that such amendment permits the LLC
to provide indemnification rights broader than the Act permitted the LLC to
provide prior to such amendment), the Board and each Participant, and each
of their respective equityholders, directors, officers, partners, members,
managers controlling persons, agents and employees, against all losses,
liabilities, damages or expenses (including amounts paid for attorneys'
fees and judgments and settlements in connection with any threatened,
pending or completed action, suit or proceeding) to which any such person
or entity directly or indirectly suffers by virtue of any action taken or
omission by such person or entity in connection with his or its involvement
with the LLC or any subsidiary of the LLC (including serving as a manager,
officer, director, consultant or employee of any subsidiary of the LLC),
but only to the extent the Board, in its sole discretion, determines that
such action or omission does not violate this Agreement or any other
agreement to which such person or entity is a party or by which such person
or entity is bound and, with respect to any criminal action or proceeding,
was taken without reasonable cause to believe such conduct was unlawful. In
the sole discretion of the Board, the LLC will pay (as incurred) the
expenses incurred by such person or entity indemnifiable hereunder in
connection with any proceeding in advance of its final disposition, so long
as the LLC receives a written undertaking (reasonably acceptable to the
Board) by such person or entity to repay the full amount advanced if there
is a final determination that such person or entity is not entitled to
indemnification as provided herein. The LLC may, to the extent authorized
from time to time by the Board, grant rights of indemnification and
advancement of expenses to any employee, officer or agent of the LLC.
Section 4.13 TRANSFER OF LLC INTEREST.
(a) No Participant shall sell, assign, transfer or
otherwise dispose of, whether voluntarily or involuntarily or by operation
of law (a "TRANSFER"), all or any portion of his, her or its interest in
the LLC without the prior written consent of the Board, which consent may
be given or withheld in its sole discretion, except in the case of a sale,
assignment, transfer or disposition to any affiliate of the Participant (in
which case no consent of the Board will be required).
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(b) Notwithstanding any other provision of this
Agreement, any Transfer by the Participants in contravention of any of the
provisions of this SECTION 4.13 shall be void and ineffective, and shall
not bind, or be recognized by, the LLC.
(c) If and to the extent any Transfer of an interest in
the LLC is permitted hereunder, this Agreement (including the Schedules and
Exhibits hereto) shall be amended by the Board to reflect the Transfer of
the LLC interest to the transferee, to admit the transferee as a Member and
to reflect the elimination of the transferring Participant (or the
reduction of such Transferring Participant's interest in the LLC) and (if
and to the extent then required by the Act) a certificate of amendment to
the Certificate reflecting such admission and elimination (or reduction)
shall be filed in accordance with the Act. The effectiveness of the
Transfer of an interest in the LLC permitted hereunder and the admission of
any substitute Member pursuant to this SECTION 4.13 shall be deemed
effective immediately prior to the Transfer of an interest in the LLC to
such Participant or if later on the first date that the Board receives
evidence of such Transfer, including the terms thereof. If the transferring
Participant has transferred all or any of its interest in the LLC pursuant
to this SECTION 4.13, then, immediately following such Transfer or, if
later, on the first date that the Board receives evidence of such Transfer,
including the terms thereof, the transferring Participant shall cease to be
a Participant with respect to such interest.
(d) Any person or entity who acquires in any manner
whatsoever any interest in the LLC, irrespective of whether such person or
entity has accepted and adopted in writing the terms and provisions of this
Agreement, shall be deemed by the acceptance of the benefits of the
acquisition thereof to have (i) made all of the capital contributions made
by, (ii) received all of the distributions received by, and (iii) agreed to
be subject to and bound by all the terms and conditions of this Agreement
that, any predecessor in such interest in the LLC made, received and was
subject to or bound by.
Section 4.14 MEMBER RIGHTS; MEETINGS.
(a) No Member, other than a Member that is also a
Manager, shall have any right, power or duty, including the right to
approve or vote on any matter, except as expressly required by the Act or
other applicable law or as expressly provided for hereunder.
(b) Unless a greater vote is required by the Act or as
expressly provided for hereunder, the affirmative vote of a Majority in
Interest of the Member(s) entitled to vote shall be required to approve any
proposed action.
(c) Meetings of the Member(s) for the transaction of such
business as may properly come before such Member(s) shall be held at such
place, on such date and at such time as the Board shall determine. Special
meetings of Member(s) for any proper purpose or purposes may be called at
any time by the Board or the Member(s) holding a Majority in Interest. The
LLC shall deliver oral or written notice (written notice may be delivered
by mail) stating the date, time, place and purposes of any meeting to each
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Member entitled to vote at the meeting. Such notice shall be given not less
than four (4) and no more than sixty (60) days before the date of the
meeting.
(d) Membership interests may be voted at a meeting of
Member(s) in person or by proxy duly executed by the Member(s) holding the
membership interests of record on the record date for such meeting fixed by
the Board. All such proxies shall be filed with the LLC prior to or at such
meeting. Notwithstanding that a valid proxy is outstanding, powers of the
proxy holder will be suspended if the person executing the proxy is present
at the meeting and elects to vote in person.
(e) Any action required or permitted to be taken at an
annual or special meeting of the Member(s) may be taken without a meeting,
without prior notice, and without a vote, provided that written consents,
setting forth all proposed actions to be taken at such meeting, are signed
by the Member(s) holding at least the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all
Member(s) entitled to vote on such action were present and voted. Every
written consent shall bear the date and signature of each Member who signs
such consent. Prompt notice of the taking of action without a meeting by
less than unanimous written consent shall be given to all Members who have
not consented in writing to such action.
Section 4.15 ADDITIONAL MEMBERS. The Board shall have the sole
right to admit additional Members upon such terms and conditions, at such time
or times as the Board shall in its sole discretion determine. In connection with
any such admission, the Board shall amend SCHEDULE I to reflect the name,
address and capital contribution of the additional Member and the new Percentage
Interests of all Participants; provided that no Participant's Percentage
Interest may be reduced disproportionately without its consent.
Section 4.16 TERMINATION OF A MEMBER. A person or entity will no
longer be a Member for purposes of this Agreement upon an Event of Withdrawal.
The Terminated Member shall only be entitled to continue to receive allocation
of Profits and Losses and distributions of the LLC, including distributions
pursuant to ARTICLE V hereof, as and when paid by the LLC, to the same extent
such Terminated Member was entitled to such distributions as a Member. Except as
provided in SECTION 8.1, such Terminated Member will not be entitled to
participate in any LLC decision or determination, and his, her or its successors
and assigns will acquire only his, her or its right to receive allocation of
Profits and Losses and to share in LLC distributions.
Section 4.17 OUTSIDE BUSINESSES. Any Participant may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the LLC,
and the LLC and the Participants shall have no rights by virtue of this
Agreement in and to such independent ventures or the income or gains derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the LLC, shall not be deemed wrongful or improper. No Participant
shall be obligated to present any particular investment opportunity to the LLC
even if such opportunity is of a character that, if presented to the LLC, could
be taken by the LLC, and any Participant shall have the right to take for his,
her or its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment opportunity.
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ARTICLE V
DURATION
Section 5.1 DURATION. The LLC shall be dissolved and its affairs
wound up and terminated upon the first to occur of the following:
(a) the affirmative vote to such effect of the Member(s)
holding a Majority in Interest; and
(b) the entry of a decree of judicial dissolution under
Section 18-802 of the Act.
Except as otherwise set forth in this ARTICLE V, the Member(s) intend for the
LLC to have perpetual existence.
Section 5.2 WINDING UP.
Upon dissolution of the LLC, the LLC shall be liquidated in an orderly
manner. The Board shall be the liquidator pursuant to this Agreement and shall
proceed diligently to wind up the affairs of the LLC and make final
distributions as provided herein and in the Act. The costs of liquidation shall
be borne as a LLC expense. The steps to be accomplished by the liquidator are as
follows:
(a) First, the liquidator shall satisfy all of the LLC's
debts and liabilities to creditors other than Participants (whether by
payment or the reasonable provision for payment thereof);
(b) Second, the liquidator shall satisfy all of the LLC's
debts and liabilities to Participants (whether by payment or the reasonable
provision for payment thereof); and
(c) Third, all remaining assets shall be distributed to
the Participants in accordance with SECTION 3.1.
Section 5.3 TERMINATION. The LLC shall terminate when all of the
assets of the LLC, after payment of or due provision for all debts, liabilities
and obligations of the LLC, shall have been distributed to the Participants in
the manner provided for in this ARTICLE V, and the Certificate of the LLC shall
have been canceled in the manner required by the Act.
ARTICLE VI
VALUATION
Section 6.1 VALUATION. For purposes of this Agreement, the value
of any property contributed by or distributed to any Participant shall be valued
as determined by the Board and the Member(s).
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ARTICLE VII
MEMBERSHIP INTERESTS
Section 7.1 MEMBERSHIP INTERESTS. The membership interests in the
LLC shall not be certificated. The name of each holder of an interest in the
LLC, together with such holder's Percentage Interest and other pertinent
information, shall be entered on the books of the LLC. Membership interests of
the LLC shall only be transferred on the books of the LLC by the holder of
record thereof or by such holder's attorney duly authorized in writing with such
evidence of the authenticity of such authorization, and other matters as the LLC
may reasonably require. In that event, it shall be the duty of the LLC to record
the transaction on its books. The Board may appoint a bank or trust company
organized under the laws of the United States or any state thereof to act as its
transfer agent, registrar or both in connection with the transfer of any class
or series of membership interests of the LLC.
ARTICLE VIII
BOOKS OF ACCOUNT; MEETINGS
Section 8.1 BOOKS. The LLC will maintain complete and accurate
books of account of the LLC's affairs, which books will be open to inspection by
any Member (or his authorized representative) at any time during ordinary
business hours and shall be maintained in accordance with the Act.
Section 8.2 FISCAL YEAR. The fiscal year of the LLC shall end on
December 31 of each year or such other year end as the Board may determine in
its sole discretion.
Section 8.3 TAX ALLOCATION AND REPORTS.
(a) The income, gains, losses, deductions and credits of
the LLC will be allocated, for federal, state and local income tax
purposes, among the Participants in accordance with the allocation of such
income, gains, losses, deductions and credits among the Participants for
computing their Capital Accounts, except as otherwise provided in the Code
or other applicable law.
(b) In accordance with Code Section 704(c) and the
Treasury Regulations thereunder, income, gain, loss, deduction and expense
with respect to any property contributed to the capital of the LLC shall,
solely for tax purposes, be allocated among the Participants so as to take
account of any variation between the adjusted basis of such property to the
LLC for federal income tax purposes and its fair market value at the time
of contribution.
(c) Within 75 days after the end of each fiscal year, the
Tax Matters Partner (as defined below) shall cause the LLC to furnish each
Participant with a copy of the LLC's tax return and form K-1 for such
fiscal year.
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(d) The LLC hereby designates the Initial Member to act
as the "Tax Matters Partner" (as defined in Section 6231(a)(7) of the Code)
in accordance with Sections 6221 through 6233 of the Code.
ARTICLE IX
MISCELLANEOUS
Section 9.1 AMENDMENTS. Except as otherwise provided herein, this
Agreement may be amended or modified and any provision hereof may be waived only
by the Board, with the consent of the Member(s) holding a Majority in Interest;
provided, however, that any amendment or modification reducing
disproportionately a Participant's LLC interest or other interest in the profits
or losses or in distributions or increasing such Participant's capital
contribution shall be effective only with such Participant's consent.
Section 9.2 SUCCESSORS. Except as otherwise provided herein, this
Agreement will inure to the benefit of and be binding upon the Participants and
their respective legal representatives, heirs, successors and permitted assigns.
Section 9.3 GOVERNING LAW; SEVERABILITY. This Agreement will be
construed in accordance with the laws of the State of Delaware and, to the
maximum extent possible, in such manner as to comply with all the terms and
conditions of the Act. If it is determined by a court of competent jurisdiction
that any provision of this Agreement is invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
Section 9.4 NOTICES. All notices, demands and other
communications to be given and delivered under or by reason of provisions under
this Agreement shall be in writing and shall be deemed to have been given when
personally delivered, mailed by first class mail (postage prepaid and return
receipt requested), sent by telecopy or sent by reputable overnight courier
service (charges prepaid) to the addresses or telecopy numbers set forth in
SCHEDULE I hereto or to such other addresses or telecopy numbers as have been
supplied in writing to the LLC.
Section 9.5 COMPLETE AGREEMENT; HEADINGS, COUNTERPARTS. This
Agreement terminates and supersedes all other agreements concerning the subject
matter hereof previously entered into among any of the parties. Descriptive
headings are for convenience only and will not control or affect the meaning or
construction of any provision of this Agreement. Wherever from the context it
appears appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in either the
masculine, feminine or the neuter gender shall include the masculine, the
feminine and the neuter. This Agreement may be executed in any number of
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts together will constitute one agreement.
Section 9.6 PARTITION. Each Participant waives, until termination
of the LLC, any and all rights that it may have to maintain an action for
partition of the LLC's property.
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Section 9.7 NO STRICT CONSTRUCTION. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
* * * * * * * * *
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IN WITNESS WHEREOF, the Initial Member has caused this Limited
Liability Company Agreement to be signed as of the date first above written.
INITIAL MEMBER:
MEDTECH/DENOREX, LLC
By: /S/ AARON S. COHEN
-----------------------------------
Name: Aaron S. Cohen
Its: Secretary
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SIGNATURE PAGE TO LIMITED LIABILITY COMPANY AGREEMENT
<Page>
SCHEDULE I
<Table>
<Caption>
CAPITAL PERCENTAGE
MEMBER(S) CONTRIBUTION INTEREST
- ------------------------------- --------------------------------- -----------------------------
- 1,000 shares of common stock
of SNS Household Holdings,
Inc., a Delaware corporation,
which shares represent all of
the outstanding capital stock
of such corporation;
- 330 shares of common stock
of Medtech Acquisition
Holdings, Inc., a Delaware
Medtech/Denorex, LLC corporation, which shares 100%
represent all of the
outstanding capital stock of
such corporation; and
- 330 shares of common stock
of Denorex Acquisition
Holdings, Inc., a Delaware
corporation, which shares
represent all of the
outstanding capital stock of
such corporation.
</Table>
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