Exhibit 3.3
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF
SHELL EPOXY RESINS LLC
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This Amended and Restated Limited Liability Company Agreement (this
"AGREEMENT") of SHELL EPOXY RESINS LLC, dated and effective as of November 14,
2000, is entered into by SHELL EPOXY RESINS INC., a Delaware corporation, as the
sole member (the "MEMBER").
The Member, by execution of this Agreement, has formed a limited liability
company pursuant to and in accordance with the Delaware Limited Liability
Company Act (6 Del. C. (S) 18-101, et seq.), as amended from time to time (the
"Act"), and hereby agrees as follows:
1. Name. The name of the limited liability company is SHELL EPOXY RESINS
LLC (the "COMPANY").
2. Purposes. The Company has been 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.
3. Powers. In furtherance of its purposes, but subject to all of the
provisions of this Agreement, the Company shall have the power and is hereby
authorized to:
(a) Acquire by purchase, lease, contribution of property or
otherwise, own, hold, sell, convey, transfer or dispose of any real or
personal property that may be necessary, convenient or incidental to the
accomplishment of the purposes of the Company;
(b) Act as a trustee, executor, nominee, bailee, director, officer,
agent or in some other fiduciary capacity for any person or entity and to
exercise all of the powers, duties, rights and responsibilities associated
therewith;
(c) Take any and all actions necessary, convenient or appropriate as
trustee, executor, nominee, bailee, director, officer, agent or other
fiduciary, including the granting or approval of waivers, consents or
amendments of rights or powers relating thereto and the execution of
appropriate documents to evidence such waivers, consents or amendments;
(d) Operate, purchase, maintain, finance, improve, own, sell, convey,
assign, mortgage, lease or demolish or otherwise dispose of any real or
personal property that may be necessary, convenient or incidental to the
accomplishment of the purposes of the Company;
(e) Borrow money and issue evidences of indebtedness in furtherance
of any or all of the purposes of the Company, and secure the same by
mortgage, pledge or other lien on the assets of the Company;
(f) Invest any funds of the Company pending distribution or payment
of the same pursuant to the provisions of this Agreement;
(g) Prepay, in whole or in part, refinance, increase, modify or
extend any indebtedness of the Company and, in connection therewith,
execute any extensions, renewals or modifications of any mortgage or
security agreement securing such indebtedness;
(h) Enter into, perform and carry out contracts of any kind,
including, without limitation, contracts with any person or entity
affiliated with the Member, necessary to, in connection with, convenient
to, or incidental to the accomplishment of the purposes of the Company;
(i) Employ or otherwise engage employees, managers, contractors,
advisors, attorneys and consultants and pay reasonable compensation for
such services;
(j) Enter into partnerships, limited liability companies, trusts,
associations, corporations or other ventures with other persons or entities
in furtherance of the purposes of the Company; and
(k) Do such other things and engage in such other activities related
to the foregoing as may be necessary, convenient or incidental to the
conduct of the business of the Company, and have and exercise all of the
powers and rights conferred upon limited liability companies formed
pursuant to the Act.
4. Principal Business Office. The principal business office of the
Company shall be located at such location as may hereafter be determined by the
Member.
5. Registered Office; Registered Agent . The registered office of the
Company in the State of Delaware is located at ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ of Kent. The registered agent of the Company at such address is
National Registered Agents, Inc.
6. Membership Units. The Company shall be authorized to issue one million
(1,000,000) membership units ("Membership Units"), all of which shall be issued
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to the Member. Membership Units shall for all purposes be personal property.
Units of the Company may be certificated and, if so certificated, shall be
securities within the meaning of Article 8 of the Uniform Commercial Code.
7. Members. The name and the mailing address of the Member are as follows:
Name Address
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Shell Epoxy Resins Inc. ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
8. Limited Liability. Except as otherwise provided by the Act, 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.
9. Admission. The Member is deemed admitted to the Company as the Member
on July 1, 1999 and shall become bound by this Agreement upon its execution and
delivery.
10. Capital Contributions. The Member is not required to make any capital
contribution to the Company. However, the Member may at any time make capital
contributions to the Company.
11. Allocation of Profits and Losses. The Company's profits and losses
shall be allocated solely to the Member.
12. Distributions. Distributions shall be made to the Member at the times
and in the aggregate amounts determined by the Member. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
make a distribution to the Member on account of its interest in the Company if
such distribution would violate Section 18-607 of the Act or other applicable
law.
13. Management. Management of the Company shall be vested in the Board of
Managers. In accordance with Section 18-402 of the Act, and subject to the
delegation of rights and powers provided for herein and in the By-laws of the
Company (as such By-laws may be amended from time to time, and as such are
expressly incorporated by reference into this Agreement and made a part hereof),
the Board of Managers shall have the sole right to manage the business of the
Company and shall have all powers and rights necessary, appropriate or advisable
to effectuate and carry out the purposes and business of the Company. The
authority of the Board of Managers over the conduct and business affairs of the
Company shall be subject only to such limitations as are expressly stated in
this Agreement or in the Act. The Board of Managers shall consist of that
number of managers as shall be selected by the Member. Any manager or the entire
Board of Managers may be removed, with or without cause, at any time by the
Member.
14. Officers. The Board of Managers may, from time to time as it deems
advisable, select natural persons who are employees or agents of the Company and
designate them as officers of the Company (the "OFFICERS") and assign titles
(including, without limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Board of Managers decides otherwise,
if the title is one commonly used for officers of a business corporation formed
under the Delaware General Corporation Law, the assignment of such title shall
constitute the delegation to such person of the authorities and duties that are
normally associated with that office. Any delegation pursuant to this Section
15 may be revoked at any time by the Board of Managers. An Officer may be
removed with or without cause by the Board of Managers.
15. Other Business. The Member may engage in or possess an interest in
other business ventures of every kind and description, independently or with
others. The Company shall not have any rights in or to such independent ventures
or the income or profits therefrom by virtue of this Agreement.
16. Exculpation and Indemnification. (a) The Member shall not be liable to
the Company or any other person or entity who has an interest in the Company for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by the Member in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on the
Member by this Agreement, except that the Member shall be liable for any such
loss, damage or claim incurred by reason of the Member's willful misconduct. To
the full extent permitted by applicable law, the Member shall be entitled to
indemnification from the
Company for any loss, damage or claim incurred by the Member by reason of any
act or omission performed or omitted by the Member in good faith on behalf of
the Company and in a manner reasonably believed to be within the scope of the
authority conferred on the Member by this Agreement, except that the Member
shall not be entitled to be indemnified in respect of any loss, damage or claim
incurred by the Member by reason of willful misconduct with respect to such acts
or omissions; provided, however, that any indemnity under this Section 16 shall
be provided out of and to the extent of Company assets only, and the Member
shall not have personal liability on account thereof.
(b) The Company shall, to the fullest extent authorized by the Act,
indemnify and hold harmless the Member, any member of the Board of Managers, or
any officer or employee of the Company from and against any and all claims and
demands arising by reason of the fact that such person is, or was, the Member,
member of the Board of Managers, officer or employee of the Company.
17. Assignments. The Member may at any time assign in whole or in part its
limited liability company interest in the Company. If the Member transfers all
of its interest in the Company pursuant to this Section 17, the transferee shall
be admitted to the Company upon its execution of an instrument signifying its
agreement to be bound by the terms and conditions of this Agreement. Such
admission shall be deemed effective immediately prior to the transfer, and,
immediately following such admission, the transferor Member shall cease to be a
member of the Company.
18. Resignation. The Member may at any time resign from the Company. If
the Member resigns pursuant to this Section 18, an additional member shall be
admitted to the Company, subject to Section 19 hereof, upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement. Such admission shall be deemed effective immediately prior to
the resignation, and, immediately following such admission, the resigning Member
shall cease to be a member of the Company.
19. Admission of Additional Members. One or more additional members of the
Company may be admitted to the Company with the written consent of the Member.
20. Dissolution.
(a) The Company shall dissolve and its affairs shall be wound up upon
the first to occur of the following: (i) the written consent of the Member,
(ii) at any time there are no members of the Company unless, within 90 days
of the occurrence of the event that terminated the continued membership of
the last remaining member of the Company (the "TERMINATION EVENT"), the
personal representative of the last remaining member agrees in writing to
continue the Company and to the admission to the Company of such personal
representative or its nominee or designee as a Member, effective as of the
occurrence of the Termination Event, and such successor or its nominee or
designee shall be admitted upon its execution of an instrument signifying
its agreement to be bound by the terms and conditions of this Agreement, or
(iii) the entry of a decree of judicial dissolution under Section 18-802 of
the Act.
(b) The bankruptcy of the Member shall not cause the Member to cease to
be a member of the Company and upon the occurrence of such an event, the
business of the Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of
the assets of the Company in an orderly manner), and the assets of the
Company shall be applied in the manner, and in the order of priority, set
forth in Section 18-804 of the Act.
21. Separability of Provisions. Each provision of this Agreement shall
be considered separable, and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing
or future law, such invalidity, unenforceability or illegality shall not impair
the operation of or affect those portions of this Agreement that are valid,
enforceable and legal.
22. Entire Agreement. This Agreement constitutes the entire agreement of
the Member with respect to the subject matter hereof.
23. Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by said laws.
24. Amendments. This Agreement may not be modified, altered, supplemented
or amended except pursuant to a written agreement executed and delivered by the
Member.
25. Sole Benefit of Member. The provisions of this Agreement (including
Section 10) are intended solely to benefit the Member and, to the fullest extent
permitted by applicable law, shall not be construed as conferring any benefit
upon any creditor of the Company (and no such creditor shall be a third-party
beneficiary of this Agreement), and no Member shall have any duty or obligation
to any creditor of the Company to make any contributions or payments to the
Company.
26. Pledge of Security. Notwithstanding anything to the contrary herein,
the Member can pledge equity of the Company as security for obligations under
its financing arrangements and the holders of such security can exercise any and
all remedies provided for in the relevant documentation governing such security.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Limited Liability Company Agreement as of the day and
year first above written.
SHELL EPOXY RESINS INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Attorney-In-Fact