EXHIBIT 3.4
LIMITED LIABILITY COMPANY AGREEMENT
OF
HUNTSMAN ICI FINANCIAL LLC
(A Delaware Limited Liability Company)
LIMITED LIABILITY COMPANY AGREEMENT, dated as of June 18, 1999 (this
"Agreement"), of Huntsman ICI Financial LLC (the "Company") by and between
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Huntsman ICI Chemicals LLC, a Delaware limited liability company ("Huntsman")
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and each Person (as defined in the Delaware Limited Liability Company Act, as
amended from time to time (the "Act")) subsequently admitted as a member of the
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Company (individually, a "Member" and collectively, the "Members").
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RECITAL
WHEREAS, Huntsman has caused the Company to be formed under the Act,
and Huntsman 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 FINANCIAL 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 Huntsman,
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which holds 100% of the membership interests of the Company. Huntsman's
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 Huntsman.
Section 3.3 Certificates. The membership interest of a Member in the
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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, the
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"Certificates"). Each Certificate shall be executed by the Chief Executive
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Officer or any Vice President and the Secretary or any Assistant Secretary of
the Company (or other persons designated by the Board).
ARTICLE IV
MANAGEMENT
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Section 4.1 Designation of Managers. The Company shall have up to
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five managers, each of whom shall be designated and appointed by Huntsman (each,
a "Manager"). The names of the initial Managers are ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
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Huntsman, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. A
Manager may be removed at any time from such position by Huntsman. Upon the
removal or resignation of a Manager, a new Manager may be designated and
appointed by Huntsman.
Section 4.2 General Powers of the Manager. Each Manager shall have
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the responsibility and authority to manage, direct, control and conduct the
business and affairs the Company, subject to the direction and oversight of the
Members.
Without limiting the generality of the foregoing, each Manager is
authorized:
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(a) to negotiate, execute and deliver in the name and on behalf of
the Company the Intercompany Notes (each such note substantially in the
form attached hereto as Exhibit A) (the "Intercompany Notes") on such terms
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and with such conditions as such Manager shall deem necessary, proper and
advisable to consummate the transactions contemplated by that certain
Contribution Agreement, dated April 15, 1999 (the "Contribution
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Agreement"), by and between Imperial Chemical Industries PLC, Huntsman
Specialty Chemicals Corporation and Huntsman ICI Holdings LLC (as amended,
modified or supplemented) (the "Transaction"), the execution of which shall
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be conclusive evidence that the same was necessary, proper and advisable;
and
(b) to execute, deliver and amend, or authorize and approve the
execution, delivery and amendment of, all agreements, instruments and
documents, and to take, or authorize the taking of, all actions, as any
Manager may deem necessary and desirable to consummate the Transaction, and
the actions of any of the Managers in negotiating the Intercompany Notes
and such other agreements, documents and instruments (collectively, the
"Supplemental Instruments") as such Manager deems necessary, proper and
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advisable to establish the relationships and to consummate the Transaction
by the Company, the execution of the Intercompany Notes and any of the
Supplemental Instruments conclusively establishing each Managers authority
therefor from the Company; and
(c) to take all such future actions and to do all such things as any
of the Managers may deem to be necessary, proper or advisable, to document
and/or consummate the Transaction by the Company, including, without
limitation, negotiating, executing and delivering future modifications,
amendments, supplements or changes to the Intercompany Notes and/or the
Supplemental Instruments, and negotiating, executing and delivering such
additional agreements, instruments, documents and certificates, in the name
and on behalf of the Company, which shall in such Manager's judgement be
necessary, proper or advisable in order to modify, amend, supplement or
change the Intercompany Notes and/or Supplemental Instruments any time in
the future, the execution or any such future modification, amendment,
supplement, or other document evidencing a change, or the execution of such
additional agreement, instrument, document or certificate to be conclusive
evidence of the same as necessary, proper or advisable.
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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 any of the Managers. Any decision or act of a Manager within the
scope of his power and authority granted hereunder shall control and shall bind
the Company.
Section 4.3 Reliance by Third Parties. Persons dealing with the
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Company are entitled to rely conclusively upon the power and authority of any of
the Managers herein set forth.
ARTICLE V
Miscellaneous
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Section 5.1 Amendment to the Agreement. This Agreement may be amended
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by, and only by, a written instrument executed by Huntsman.
Section 5.2 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.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first above written.
HUNTSMAN ICI CHEMICALS LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
Title: Manager
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EXHIBIT A
CERTIFICATE FOR INTERESTS IN
HUNTSMAN ICI FINANCIAL LLC
A Delaware Limited Liability Company
Certificate No. _____ No. of Units _____
Huntsman ICI Financial 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 FINANCIAL LLC
________________________________ By _________________________________________
Secretary or Assistant Secretary Chief Executive Officer or Vice President
Dated: ___________________
5
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
AMENDMENT NO. 1
TO
LIMITED LIABILITY COMPANY
AGREEMENT
This Amendment No. 1 (this "Amendment") to the Limited Liability Company
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Agreement (the "LLC Agreement") of Huntsman ICI Financial LLC, a limited
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liability company organized and existing under the laws of the State of Delaware
(the "Company"), is made this 19th day of June, 1999, by Huntsman ICI Chemicals
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LLC, as the sole member of the Company ("Huntsman").
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WHEREAS, Huntsman had previously entered into the LLC Agreement dated
as of June 18, 1999; and
WHEREAS, Huntsman desires to amend the LLC Agreement to provide
clarification as to the type of interest held by members of the Company.
NOW, THEREFORE, pursuant to Section 5.1 of the LLC Agreement, Huntsman
hereby agrees as follows:
1. Article III of the LLC Agreement shall be amended to include the
following Section 3.4:
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.
2. Upon the execution and delivery of this Amendment, the LLC Agreement
shall be amended in accordance herewith and this Amendment shall form a part of
the LLC Agreement for all purposes, and Huntsman and every Member (as defined in
the LLC Agreement) shall be bound by the LLC Agreement, as so amended.
IN WITNESS WHEREOF, the undersigned has duly executed this Amendment as of
the date first above written.
HUNTSMAN ICI CHEMICALS LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager