EXHIBIT 3.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
HUNTSMAN ICI CHEMICALS LLC
(A Delaware Limited Liability Company)
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, dated as of
June 30, 1999 (this "Agreement"), of Huntsman ICI Chemicals LLC (the "Company")
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by and between Huntsman ICI Holdings LLC, a Delaware limited liability company
("Holdings") and each Person (as defined in the Delaware Limited Liability
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Company Act, as amended from time to time (the "Act")) subsequently admitted as
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a member of the Company (individually, a "Member" and collectively, the
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"Members").
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RECITAL
WHEREAS, Holdings has caused the Company to be formed under the Act,
and Holdings desires pursuant to the Act to set forth information regarding
certain affairs of the Company and certain conduct of its business.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
FORMATION
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The Company has been formed as a limited liability company pursuant to the
Act. A Certificate of Formation described in Section 18-201 of the Act (the
"Certificate of Formation") has been filed by ▇▇▇▇ ▇. ▇▇▇▇▇, who was authorized
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to sign and file the Certificate of Formation, with the Secretary of State of
the State of Delaware in conformity with the Act. The name of the Company is
"HUNTSMAN ICI CHEMICALS LLC" or such other name or names as may be selected by
the Members from time to time.
ARTICLE II
TERM
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The existence of the Company shall commence 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 the Company shall have a
perpetual life.
ARTICLE III
MEMBERS
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Section 3.1 Members. The initial Member of the Company is Holdings,
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which holds 100% of the membership interests of the Company. Holdings'
principal address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
Section 3.2 Admission of New Members. No Person shall be admitted as
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a Member of the Company without the approval of Holdings.
Section 3.3 Certificates of Membership. The membership interest of a
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Member in the Company owned by each Member (denominated in units) shall be
evidenced by one or more certificates (in substantially the form attached hereto
as Exhibit A, "Certificates"). Each Certificate shall be executed by the Chief
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Executive Officer or any Vice President and the Secretary or any Assistant
Secretary of the Company (or other persons designated by the Board).
Section 3.4 Interest as a Security. A membership interest of a
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Member in the Company evidenced by a Certificate shall constitute a security for
all purposes of Article 8 of the Uniform Commercial Code promulgated by the
National Conference of Commissioners on Uniform State Laws, as in effect in
Delaware or any other applicable jurisdiction. Delaware law shall constitute
the local law of the Company's jurisdiction in its capacity as the issuer of
membership interests of a Member in the Company.
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ARTICLE IV
MANAGEMENT
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Section 4.1 Board of Managers. The business and affairs of the
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Company shall be managed by a Board of Managers (the "Board"), which shall be
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responsible for policy setting and approval of the overall direction of the
Company. The Board shall consist of up to four individuals (the "Managers").
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The names of the Managers are ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇. A Manager may be removed at any time from such
position by Holdings. Upon the removal or resignation of a Manager, a new
Manager may be designated and appointed by Holdings.
All decisions affecting or to be made by, and all actions to be taken
and obligations to be incurred on behalf of, the Company shall be made, taken or
incurred by the Board or any other person designated by the Board. Any decision
or act of the Board within the scope of its power and authority granted
hereunder shall control and shall bind the Company.
Section 4.2 Quorum. At all meetings of the Board (in person or via a
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conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other), a majority of the
entire Board shall constitute a quorum for the transaction of business and the
act of a majority of the Managers present at any meeting at which there is a
quorum shall be an act of the Board.
Section 4.3 Actions by Written Consent. Any action required or
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permitted to be taken at any meeting of the Board may be taken without a
meeting, if a majority of the Managers consents thereto in writing, and the
writings are filed with the records of the Company.
Section 4.4 Reliance by Third Parties. Persons dealing with the
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Company are entitled to rely conclusively upon the power and authority of the
Board herein set forth.
Section 4.5 Limitations on Duties and Liabilities. To the fullest
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extent permitted under Section 18-1101 of the Delaware Act, (a) with respect to
those matters addressed in clauses 4.7 and 4.12 of the Holdings Agreement (as
defined below), no duty (including any fiduciary duty), whether at law or in
equity, that any Manager or Member has to the Company or any other Manager or
Member shall require such Manager or Member to take any action that is not
authorized as contemplated by the Holdings
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Agreement, and (b) no Manager or Member shall (i) be deemed to breach any duty
(including any fiduciary duty), whether at law or in equity, that it has to the
Company or any other Manager or Member or (ii) have any liability to the Company
or any other Manager or Member with respect to any act or omission, in each
case, if and to the extent that such Manager or Member acts in accordance with
any instruction or direction of the Board of Managers of Holdings. The Foregoing
is not intended to expand in any manner the duties (including any fiduciary
duties), whether at law or in equity, of any Manager or Member.
ARTICLE V
DISTRIBUTIONS AND CAPITAL CONTRIBUTIONS
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Section 5.1 As soon as reasonably practicable after the end of each
calendar quarter, the Company shall determine the Tax Allowance Amount in
respect of such quarter. Upon such determination, the Company shall cause the
Tax Allowance Amount to be distributed in cash to Holdings to the extent of
Available Net Cash Flow, provided that such a distribution is permitted by all
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lending agreements to which the Company is then a party.
For purposes of this Article:
"Available Net Cash Flow" means, for any period, the consolidated gross
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cash receipts (net of borrowings) of the U.S. Associate Group less (i) all
expenses of the U.S. Associate Group which require a cash expenditure, (ii) all
payments of principal of, interest on and any other amounts with respect to
indebtedness, leases or other commitments or obligations of the U.S. Associate
Group (including loans by Members to the U.S. Associate Group), (iii) any sum
expended by the U.S. Associate Group for capital expenditures or asset
acquisitions, and (iv) reserves for anticipated working capital and other
purposes, the amounts of which shall be reasonably determined from time to time
by the Board, provided that in the case of each of (i), (ii) and (iii) above,
expenses, payments and other amounts shall be taken into account to the extent
that they are due and payable during the period for which Available Net Cash
Flow is being generated.
"BTCP Member" has the meaning set forth in the Holdings Agreement.
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"CEA Member" has the meaning set forth in the Holdings Agreement.
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"GSG Member" has the meaning set forth in the Holdings Agreement.
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"H Member" has the meaning set forth in the Holdings Agreement.
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"Holdings Agreement" means the Amended and Restated Limited Liability
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Company Agreement, dated _______, 1999, by and among Huntsman Specialty
Chemicals Corporation, ICI Americas Inc., ICI Alta Inc., BT Capital Investors,
L.P., Chase Equity Associates, L.P. and The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc., as
amended from time to time.
"ICI Member" has the meaning set forth in the Holdings Agreement.
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"Tax Allowance Amount" means, for any calendar quarter, an amount of cash
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equal to the sum of (i) the product of (q) the amount of net taxable income
allocable by Holdings to the ICI Member and (r) 38%, (ii) the product of (s) the
amount of net taxable income allocable by Holdings to the H Member and (t) 38%,
(iii) the product of (u) the amount of net taxable income allocable by Holdings
to the BTCP Member and (v) 38%, (iv) the product of (w) the amount of net
taxable income allocable by Holdings to the CEA Member and (x) 38%, and (v) the
product of (y) the amount of net taxable income allocable by Holdings to the GSG
Member and (z) 38%, provided, however, that, had each of the amounts determined
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pursuant to clauses (i), (ii), (iii), (iv) and (v) been distributed directly to
the relevant members of Holdings, if the H Member would have received more than
60% of the aggregate tax allowance amounts so computed, the ICI Member would
have received more than 30% of the aggregate tax allowance amounts so computed,
either the BTCP Member and/or the CEA Member would have received more than 4
4/9% of the aggregate tax allowance amounts so computed and/or the GSG Member
would have received more than 1 1/9% of the aggregate tax allowance amounts so
computed, then the tax allowance amount determined with respect to the other
members of Holdings shall be increased for purposes of computing the Tax
Allowance Amount so that the Tax Allowance Amount is an aggregate amount that,
if distributed directly to the relevant members of Holdings, would be
distributed 60% to the H Member, 30% to the ICI Member, 4 4/9% to the BTCP
Member, 4 4/9% to the CEA Member and 1 1/9% to the GSG Member; provided, that as
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a result of the immediately preceding proviso, the Tax Allowance Amount shall
not exceed the product of (a) the net taxable income of Holdings determined on a
hypothetical basis as if Holdings were treated as a corporation for U.S. income
tax purposes and (b) 40%. In calculating the Tax Allowance Amounts, the amounts
of net taxable income allocable by Holdings to each Member shall be increased or
decreased, as necessary, to reflect the extent to which estimated amounts of net
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taxable income used to calculate Tax Allowance Amounts for previous quarters
were greater or lesser than the actual amounts of net taxable income reported on
Holdings' U.S. federal income tax return.
"U.S. Associate Group" has the meaning set forth in the Holdings Agreement.
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Section 5.2 To the extent that any member of Holdings makes a mandatory
capital contribution to Holdings pursuant to section 3.1(b) of the Holdings
Agreement, then Holdings shall contribute such capital contribution to the
capital of the Company.
ARTICLE VI
MISCELLANEOUS
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Section 6.1 Amendment to the Agreement. This Agreement may be amended
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by, and only by, a written instrument executed by Holdings.
Section 6.2 Governing Law and Severability. This Agreement shall be
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governed by and construed in accordance with the laws of the State of Delaware
without giving effect to the principles of conflicts of law. In particular,
this Agreement shall be construed to the maximum extent possible to comply with
all the terms and conditions of the Act. If it shall be determined by a court
of competent jurisdiction that any provisions or wording of this Agreement shall
be invalid or unenforceable under the Act or other applicable law, such
invalidity or unenforceability shall not invalidate the entire Agreement. In
that case, this Agreement shall be construed so as to limit any term or
provision so as to make it enforceable or valid within the requirements of
applicable law, and, in the event such term or provisions cannot be so limited,
this Agreement shall be construed to omit such invalid or unenforceable terms or
provisions.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first above written.
HUNTSMAN ICI HOLDINGS LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
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EXHIBIT A
CERTIFICATE FOR INTERESTS IN
HUNTSMAN ICI CHEMICALS LLC
A Delaware Limited Liability Company
Certificate No. _____ No. of Units _____
Huntsman ICI Chemicals LLC,
a Delaware limited liability company (the "Company"), hereby certifies that
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[NAME OF MEMBER]
(The "Holder") is the registered owner of _____ Units of limited liability
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company Interest in the Company ("Interests"). The Holder, by accepting this
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Certificate, is deemed to have agreed to become a Member of the Company, if
admitted as such in accordance with the terms of the Company Agreement, and to
have agreed to comply with and be bound by, the Company Agreement.
No Interest(s) may be transferred unless and until this Certificate, or a
written instrument of transfer satisfactory to the Company, is duly endorsed or
executed for transfer by the Holder of the Holder's duly authorized attorney,
and this Certificate (together with any separate written instrument of transfer)
is delivered to the Company for registration of transfer.
THE INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW AND
MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF
UNTIL THE HOLDER PROVIDES EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY
(WHICH, IN THE DISCRETION OF THE COMPANY, MAY INCLUDE AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY) THAT SUCH OFFER, SALE, PLEDGE, TRANSFER
OR OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE SECURITIES
LAWS.
ATTEST: HUNTSMAN ICI CHEMICALS LLC
__________________________________ By__________________________________
Secretary or Assistant Secretary Chief Executive Officer or Vice
President
Dated: ___________________
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ASSIGNMENT OF INTEREST
FOR VALUE RECEIVED, the undersigned (the "Assignor"), hereby assigns,
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conveys, sells and transfers unto:
______________________________________________________________________________
Please print or typewrite Name and Address of Assignee
________________________________ Please insert Social Security or other Taxpayer
Identification Number of Assignee
___________ Units of Interest evidenced by this Certificate. Assignor
irrevocably constitutes and appoints the Company as its attorney-in-fact with
full power of substitution to transfer the Interest represented by this
Certificate, or any lesser designated number of Interest as referenced herein,
on the books of the Company.
Date:_____________________________ _____________________________________
Signature
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