Exhibit 3.14
LIMITED LIABILITY COMPANY AGREEMENT
OF
EUROFUELS LLC
A Delaware Limited Liability Company
2000
TABLE OF CONTENTS
Page
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RECITALS..................................................-1-
ARTICLE 1
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DEFINITIONS................................................-1-
1.1. Scope.......................................................................................-1-
1.2. Defined Terms...............................................................................-1-
ARTICLE 2
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THE COMPANY................................................-2-
2.1. Formation...................................................................................-2-
2.2. Name........................................................................................-2-
2.3. Business Purpose and Powers.................................................................-2-
2.4. Registered Office and Agent.................................................................-2-
2.5. Term........................................................................................-2-
2.6. Principal Place of Business.................................................................-3-
2.7 Title to Company Property...................................................................-3-
2.8 Business Transactions of the Member with the Company........................................-3-
2.9 Fiscal Year.................................................................................-3-
ARTICLE 3
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MEMBERS..................................................-3-
3.1. The Member..................................................................................-3-
3.2. Member Meetings.............................................................................-3-
3.3. Negation of Fiduciary Duties................................................................-4-
3.4 Liability of the Member.....................................................................-4-
3.5. Power to Bind the Company...................................................................-4-
3.6. Admission of Members........................................................................-4-
ARTICLE 4
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BOARD OF MANAGERS.............................................-4-
4.1. General Powers..............................................................................-4-
4.2. Number and Tenure of Managers...............................................................-4-
4.3. Regular Meetings of the Board of Managers...................................................-4-
4.4. Special Meetings of the Board of Managers...................................................-5-
4.5. Notice and Waiver of Notice of Special Meetings of the Board of Managers....................-5-
4.6. Quorum of Managers..........................................................................-5-
4.7. Manner of Acting............................................................................-5-
4.8. Manager Action by Written Consent...........................................................-6-
4.9. Resignation of Managers.....................................................................-6-
4.10. Removal of Managers.........................................................................-6-
4.11. Appointment of Managers.....................................................................-6-
ARTICLE 5
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OFFICERS..................................................-6-
5.1. Officers....................................................................................-6-
5.2 Appointment and Term of Office..............................................................-6-
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5.3. Resignation of Officers.....................................................................-7-
5.4. Removal of Officers.........................................................................-7-
5.5 President...................................................................................-7-
5.6 Vice Presidents.............................................................................-7-
5.7 Secretary...................................................................................-7-
ARTICLE 6
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CAPITAL STRUCTURE AND CONTRIBUTIONS....................................-7-
6.1 Capital Structure...........................................................................-7-
6.2 Capital Contributions.......................................................................-7-
6.3. Capital Accounts............................................................................-8-
ARTICLE 7
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PROFITS, LOSSES, AND DISTRIBUTIONS.....................................-8-
7.1 Profits and Losses..........................................................................-8-
7.2. Distributions...............................................................................-8-
7.3. Withholding Taxes...........................................................................-8-
ARTICLE 8
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ACCOUNTS AND TAX MATTERS..........................................-8-
8.1 Books.......................................................................................-9-
8.2. Company Tax Returns.........................................................................-9-
8.3 Tax Treatment...............................................................................-9-
ARTICLE 9
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DISSOLUTION................................................-9-
9.1. Events of Dissolution.......................................................................-9-
9.2. Continuation................................................................................-9-
ARTICLE 10
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TERMINATION................................................-9-
10.1. Liquidation.................................................................................-9-
10.2. Final Accounting............................................................................-9-
10.3. Distribution in Kind........................................................................-9-
10.4 Cancellation of Certificate................................................................-10-
ARTICLE 11
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TRANSFER OF INTERESTS IN THE COMPANY...................................-10-
ARTICLE 12
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EXCULPATION AND INDEMNIFICATION.....................................-10-
12.1. Exculpation................................................................................-10-
12.2. Indemnification............................................................................-10-
12.3. Amendments.................................................................................-10-
ARTICLE 13
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GENERAL PROVISIONS............................................-11-
13.1. Amendments.................................................................................-11-
13.2. Severability...............................................................................-11-
13.3. Governing Law..............................................................................-11-
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13.4. Binding Effect.............................................................................-11-
13.5. Additional Documents and Acts..............................................................-11-
13.6. No Third-Party Beneficiary.................................................................-11-
13.7. Limited Liability Company..................................................................-11-
13.8. Waiver.....................................................................................-11-
13.9. General Construction Principles............................................................-11-
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LIMITED LIABILITY COMPANY AGREEMENT
OF
EUROFUELS LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of EUROFUELS
LLC, a Delaware limited liability company (the "Company"), is made and entered
into as of the 12/th/ day of July, 2000, by HUNTSMAN ICI CHEMICALS LLC, a
Delaware limited liability company (the "Member").
RECITALS:
The Member has caused the Company to be formed as a limited liability
company under the laws of the State of Delaware and desires to enter into a
written agreement, in accordance with the provisions of the Delaware Limited
Liability Company Act and any successor statue, as amended from time to time
(the "Act"), governing the affairs of the Company and the conduct of its
business.
ARTICLE 1
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DEFINITIONS
1.1. Scope. For purposes of this Agreement, unless the language or
context clearly indicates that a different meaning is intended, capitalized
terms have the meanings specified in this Article.
1.2. Defined Terms.
(a) "Act" means the Delaware Limited Liability Company Act and any successor
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statute, as amended from time to time..
(b) "Agreement" means this Agreement, including any amendments.
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(c) "Board of Managers" means the governing board of the Company, constituted,
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appointed, and empowered as provided in Article 4.
(d) "Certificate of Formation" means the Certificate of Formation filed in the
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office of the Secretary of State of the State of Delaware in conformity with the
Act to organize the Company as a limited liability company, including any
amendments.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
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(f) "Common Interests" means the single class of interests in the Company as
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provided in Section 6.1.
(g) "Company" means Eurofuels LLC, a Delaware limited liability company, and
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any successor limited liability company.
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(h) "Contribution" means any cash, property, services rendered, a promissory
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note, or any other obligation to contribute cash or property or to perform
services, which a Person contributes to the Company in its capacity as a member.
(i) "Effective Date," with respect to this Agreement, means July 12, 2000,
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which is the date on which the Company's existence as a limited liability
company began, as prescribed by the Act.
(j) "Huntsman ICI" means Huntsman ICI Chemicals LLC, a Delaware limited
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liability company.
(k) "Manager" means a Person, whether or not a Member, who is appointed to the
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Board of Managers of the Company pursuant to the provisions of Article 4.
(l) "Member" means Huntsman ICI.
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(m) "Person" means a natural person, partnership (whether general or limited),
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limited liability company, trust, estate, association, corporation, nominee, or
any other individual or entity in its own or any representative capacity.
ARTICLE 2
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THE COMPANY
2.1. Formation. The Member has previously caused the Company to be formed
as a limited liability company pursuant to the provisions of the Act. A
Certificate of Formation for the Company (the "Certificate of Formation") has
been filed in the Office of the Secretary of State of the State of Delaware in
conformity with the Act. Express authorization is hereby given to ▇▇▇▇▇ ▇.
▇▇▇▇▇ for the exclusive purpose of executing the Certificate of Formation of the
Company which has been filed in the Office of the Secretary of State of
Delaware.
2.2. Name. The name of the Company shall be "Eurofuels LLC" and its
business shall be carried on in such name with such variations and changes as
the Board of Managers shall determine or deem necessary to comply with
requirements of the jurisdictions in which the Company's operations are
conducted.
2.3. Business Purpose and Powers. The Company is formed for the purpose
of engaging in any lawful business purpose or activity for which limited
liability companies may be formed under the Act. The Company shall possess and
may exercise all of the powers and privileges granted by the Act or by any other
law or by this Agreement, together with any powers incidental thereto, so far as
such powers and privileges are necessary or convenient to the conduct,
promotion, or attainment of the business purposes or activities of the Company.
2.4. Registered Office and Agent. The location of the registered office
of the Company shall be at the Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company's Registered Agent at such address
shall be The Corporation Trust Company.
2.5. Term. Subject to the provisions of Articles 9 and 10, the Company
shall have perpetual existence.
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2.6. Principal Place of Business. The principal place of business of the
Company shall be at such location as the Board of Managers may from time to time
select.
2.7 Title to Company Property. Legal title to all property of the
Company shall be held and vested and conveyed in the name of the Company and no
real or other property of the Company shall be deemed to be owned by the Member
individually. The Common Interests (as hereinafter defined) of the Member shall
constitute personal property.
2.8 Business Transactions of the Member with the Company. In accordance
with Section 18-107 of the Act, the Member may transact business with the
Company and, subject to applicable law, shall have the same rights and
obligations with respect to any such matter as a Person who is not a member.
2.9 Fiscal Year. The fiscal year of the Company (the "Fiscal Year") for
financial statement purposes shall end on December 31 of each year.
ARTICLE 3
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MEMBERS
3.1. The Member. The name and address of the Member are as follows:
Name Address
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Huntsman ICI Chemicals LLC ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
3.2. Member Meetings.
(a) Actions by the Member. The Member may approve a matter or take
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any action at a meeting of members or, without a meeting, by the written consent
of the members pursuant to Section 3.2(b).
(b) Action by Written Consent. Any action may be taken by the members
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of the Company without a meeting of members and without prior notice if
authorized by the written consent of members whose aggregate Common Interests
exceed fifty percent (50%) of the aggregate Common Interests of all members. In
no instance where action is authorized by written consent of the members as
provided in this Section 3.2(b) will a meeting of members be called or notice be
given. However, a copy of the action taken by written consent shall be filed
with the records of the Company and, in any instance where less than all of the
members shall have consented in writing to such action, a copy shall be sent to
such members who have not consented.
(c) Call of Meeting. The Member, the President, or the Board of
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Managers may call a meeting of members by giving written notice to all members
not less than ten (10) nor more than sixty (60) days prior to the date of the
meeting. The notice must specify the date of the meeting and the nature of any
business to be transacted. A member may waive notice of a meeting of members
orally, in writing, or by attendance at the meeting.
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(d) Proxy Voting. Any member may act at a meeting of members through
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a Person authorized by a duly executed written proxy.
(e) Quorum. Members whose aggregate Common Interests exceeds fifty
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percent (50%) will constitute a quorum at a meeting of members. No action may
be taken in the absence of a quorum.
(f) Required Vote. Except with respect to matters for which a greater
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minimum vote is required by the Act or this Agreement, the vote of members
present whose aggregate Common Interests exceeds fifty percent (50%) of the
aggregate Common Interests of all members present will constitute the act of the
members at a meeting of members.
3.3. Negation of Fiduciary Duties. A member who is not also a Manager
owes no fiduciary duties to the Company or to the other members solely by reason
of being a member.
3.4 Liability of the Member. All 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 no member (including
without limitation the Member) shall be obligated personally for any such debt,
obligation, or liability of the Company.
3.5. Power to Bind the Company. A member (acting in its capacity as such)
shall have no authority to bind the Company with respect to any matter.
3.6. Admission of Members. New members shall be admitted only upon the
written approval of the Member.
ARTICLE 4
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BOARD OF MANAGERS
4.1. General Powers. All powers of the Company shall be exercised by or
under the authority of, and the business and affairs of the Company shall be
managed under the direction of, the Board of Managers, in accordance with the
provisions of this Article 4.
4.2. Number and Tenure of Managers.
(a) Number. The number of Managers comprising the Company's Board of
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Managers shall be not less than one (1) nor more than eight (8). The number of
Managers comprising the Company's initial Board of Managers shall be three (3).
The number of Managers may be changed within the range specified in this Section
4.2(a) from time to time by resolution of the Board of Managers, but no decrease
may shorten the term of any incumbent Manager.
(b) Tenure. Each Manager shall hold office until such Manager's
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death, resignation, or removal, whichever first occurs. No decrease in the
authorized number of Managers shall have the effect of shortening the term of
any incumbent Manager.
4.3. Regular Meetings of the Board of Managers. The Board of Managers may
provide, by resolution, the time and place for the holding of regular meetings
without other notice than such resolution.
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4.4. Special Meetings of the Board of Managers. Special meetings of the
Board of Managers may be called by or at the request of the President, a Vice
President, or any Manager. The person calling a special meeting of the Board of
Managers may fix any place as the place for holding the meeting.
4.5. Notice and Waiver of Notice of Special Meetings of the Board of
Managers.
(a) Notice. Special meetings of the Board of Managers must be
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preceded by at least five (5) days notice of the date, time, and place of the
meeting. Notice may be communicated in person, by telephone, by any form of
electronic communication, or by mail or private courier. At the written request
of any Manager, notice of any special meeting of the Board of Managers shall be
given to such Manager by facsimile or telex, as the case may be, at the number
designated in writing by such Manager from time to time.
(b) Effective Date. Notice of any meeting of the Board of Managers
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shall be deemed to be effective and delivered at the earliest of the following:
(1) when received; (2) five (5) days after it is mailed; (3) the date shown on
the return receipt if sent by registered or certified mail, return receipt
requested, and the receipt is signed by or on behalf of the Manager; or (4) the
date shown on the electronic confirmation that the facsimile sent to the Manager
has been received at the current facsimile number designated in writing by the
Manager for notices by facsimile transmission hereunder.
(c) Waiver of Notice. A Manager may waive notice of any meeting.
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Except as provided in Section 4.5(c), the waiver must be in writing and signed
by the Manager entitled to the notice. The waiver shall be delivered to the
Company for filing with the Company's records, but delivery and filing are not
conditions to its effectiveness.
(d) Effect of Attendance. The attendance of a Manager at a meeting of
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the Board of Managers shall constitute a waiver of notice of such meeting,
except when a Manager attends a meeting for the express purpose of objecting to
the transaction of any business and at the beginning of the meeting, or promptly
upon arrival, the Manager objects to holding the meeting or transacting business
at the meeting because of lack of notice or defective notice, and does not
thereafter vote for or assent to action taken at the meeting.
4.6. Quorum of Managers. A majority of the authorized number of Managers
shall constitute a quorum for the transaction of business at any meeting of the
Board of Managers.
4.7. Manner of Acting.
(a) Action by Majority If a quorum is present when a vote is taken,
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the affirmative vote of a majority of Managers present is the act of the Board
of Managers,
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(b) Telephonic Meetings. Any or all Managers may participate in a
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regular or special meeting by, or conduct the meeting through the use of, any
means of communication by which all Managers participating may simultaneously
hear each other during the meeting. A Manager participating in a meeting by
this means is deemed to be present in person at the meeting.
4.8. Manager Action by Written Consent. Any action required or permitted
to be taken by the Board of Managers at a meeting may be taken without a meeting
if all of the Managers consent to the action in writing. Action is taken by
written consent at the time the last Manager signs a writing describing the
action taken, unless, prior to that time, any Manager has revoked a consent by a
writing signed by the Manager and received by the Secretary or any person
authorized by the Board of Managers to receive the revocation. Action taken by
written consent is effective when the last Manager signs the consent, unless the
Board of Managers establishes a different effective date. Action taken by
written consent has the same effect as action taken at a meeting of the Board of
Managers and may be described as such in any document.
4.9. Resignation of Managers. A Manager may resign at any time by giving a
written notice of resignation to the Company. A resignation of a Manager is
effective when the notice is received by the Company unless the notice specifies
a later effective date.
4.10. Removal of Managers. The Member may at any time remove one or more
Managers, with or without cause.
4.11. Appointment of Managers. All Managers shall be appointed by the
Member. If a vacancy occurs on the Board of Managers, including a vacancy
resulting from an increase in the number of Managers, each such vacancy shall be
filled by an appointment of a new Manager by the Member.
ARTICLE 5
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OFFICERS
5.1. Officers. The officers of the Company shall be a President, one or
more Vice Presidents, and a Secretary, each of whom shall be appointed by the
Board of Managers. Such other officers and assistant officers as may be deemed
necessary or appropriate may also be appointed by the Board of Managers. The
same individual may simultaneously hold more than one office in the Company.
5.2 Appointment and Term of Office. The officers of the Company shall be
appointed by the Board of Managers for such term as is determined by the Board
of Managers. If no term is specified, each officer shall hold office until the
officer resigns, dies, or is removed in the manner provided in Section 5.4. If
a vacancy shall occur in any office, or if a new office shall be created, the
Board of Managers may appoint an officer or officers to fill such vacancy or new
office, and such appointment shall be for the term determined by the Board of
Managers. Each officer shall hold office until his successor shall have been
duly appointed. The designation of a specified term shall not grant or be
deemed to grant to the officer any contract
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rights, and the Board of Managers may remove the officer at any time prior to
the end of such term.
5.3. Resignation of Officers. Any officer may resign at any time by
giving written notice of resignation to the Company.
5.4. Removal of Officers. Any officer or agent may be removed by the
Board of Managers at any time, with or without cause. Such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer or agent shall not of itself create or be deemed to
create any contract rights.
5.5 President. The President shall be the principal executive officer of
the Company and, subject to the control of the Board of Managers, in general,
shall supervise and control all of the business and affairs of the Company, and,
in general, shall perform all duties incident to the office of President and
such other duties as may be prescribed by the Board of Managers from time to
time.
5.6 Vice Presidents. In the absence of the President or in the event of
the President's death, inability, or refusal to act, the Vice President (if
there be such an officer and, if there be more than one Vice President, the Vice
Presidents in the order designated at the time of their election or, in the
absence of any designation, then in the order of their appointment) shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Any Vice
President may perform such other duties as from time to time may be assigned to
such Vice President by the President or by the Board of Managers.
5.7 Secretary. The Secretary shall have the following powers and duties:
(a) to keep the minutes of the proceedings of the members and of the Board of
Managers and the other records and information of the Company required to be
kept, in one or more books provided for that purpose; (b) to see that all
notices are duly given in accordance with the provisions of this Agreement; (c)
to be custodian of the organic records of the Company; and (d) in general, to
perform all duties incident to the office of Secretary and such other duties as
from time to time may be assigned to the Secretary by the President or by the
Board of Managers.
ARTICLE 6
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CAPITAL STRUCTURE AND CONTRIBUTIONS
6.1 Capital Structure. The capital structure of the Company shall
consist of one class of common interests (the "Common Interests"). All Common
Interests shall be identical with each other in every respect.
6.2 Capital Contributions.
(a) Initial Contribution. As its initial and only required
--------------------
contribution, the Member shall contribute to the Company the cash sum of Two
Hundred Fifty Thousand Dollars ($250,000.00).
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(b) Additional Contributions. The Board of Managers may authorize
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additional Contributions at such times and on such terms and conditions as it
determines to be in the best interest of the Company.
(c) Contributions Not Interest Bearing. No member is entitled to
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interest or other compensation with respect to any cash or property which such
member contributes to the Company.
(d) No Return of Contribution. No member is entitled to the return of
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any Contribution prior to the Company's dissolution and winding up.
6.3. Capital Accounts. The Company will establish and maintain a capital
account ("Capital Account") for each member. A member's Capital Account will
be:
(a) increased by: (i) the amount of any money such member contributes
to the Company's capital; (ii) the fair market value of any property such member
contributes to the Company's capital, net of any liabilities the Company assumes
or to which the property is subject; and (iii) such member's share of profits
and any separately stated items of income or gain; and
(b) decreased by: (i) the amount of any money the Company distributes
to such member; (ii) the fair market value of any property the Company
distributes to such member, net of any liabilities such member assumes or to
which the property is subject; and (iii) such member's share of losses and any
separately stated items of deduction or loss.
ARTICLE 7
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PROFITS, LOSSES, AND DISTRIBUTIONS
7.1 Profits and Losses. For financial accounting and tax purposes, the
Company's net profits or net losses shall be determined on an annual basis in
accordance with the manner in which profit or loss is determined for Federal
income tax purposes. In each year, profits and losses shall be allocated
entirely to the Member.
7.2. Distributions. The Board of Managers shall determine profits
available for distribution and the amount, if any, to be distributed to the
Member, and shall authorize and distribute on the Common Interests, the
determined amount when, as, and if declared by the Board of Managers. The
distributions of the Company shall be allocated entirely to the Member.
7.3. Withholding Taxes. The Company is authorized to withhold from
distributions to the Member, or with respect to allocations to the Member, and
to pay over to a Federal, state, or local government, any amounts required to be
withheld pursuant to the Code or any provisions of any other Federal, state, or
local law. Any amounts so withheld shall be treated as having been distributed
to the Member pursuant to this Article 7 for all purposes of this Agreement, and
shall be offset against the current or next amounts otherwise distributable to
the Member.
ARTICLE 8
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ACCOUNTS AND TAX MATTERS
8
8.1 Books. The Board of Managers shall cause to be maintained complete
and accurate books of account of the Company's affairs at the Company's
principal place of business. Such books shall be kept on such method of
accounting as the Board of Managers shall select.
8.2. Company Tax Returns. The Board of Managers shall cause to be
prepared and timely filed all tax returns required to be filed for the Company.
Subject to Section 8.3, the Member may, in its sole discretion, make or refrain
from making any tax election for the Company that it deems necessary.
8.3 Tax Treatment. To the extent the Member is the sole member of the
Company, (i) it is the intention of the Member that, solely for income tax
purposes, the Company be treated as an entity that is disregarded as an entity
separate from its owner, and (ii) the Member and the Company shall timely make
all necessary elections and filings, if any, for income tax purposes such that
it will not be treated as a separate entity, but, instead, will be treated for
income tax purposes as an entity that is disregarded as an entity separate from
its owner.
ARTICLE 9
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DISSOLUTION
9.1. Events of Dissolution. The Company shall be dissolved upon the
occurrence of any of the following events (each, an "Event of Dissolution"):
(a) The Member votes for dissolution; or
(b) A judicial dissolution of the Company under Section 18-802 of
the Act.
9.2. Continuation. Except for an Event of Dissolution, no event,
including without limitation the retirement, withdrawal, insolvency,
liquidation, dissolution, insanity, resignation, expulsion, bankruptcy, death,
incapacity, or adjudication of incompetency of any member, shall cause the
existence of the Company to terminate.
ARTICLE 10
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TERMINATION
10.1. Liquidation. In the event that an Event of Dissolution shall occur,
then the Company shall be liquidated and its affairs shall be wound up. All
proceeds from such liquidation shall be distributed in accordance with the
provisions of Section 18-804 of the Act, and all Common Interests in the Company
shall be canceled.
10.2. Final Accounting. In the event of the dissolution of the Company,
prior to any liquidation, a proper accounting shall be made to the Member from
the date of the last previous accounting to the date of dissolution.
10.3. Distribution in Kind. All or any portion of the Company's assets may
be distributed in kind to the Member in the event the Board of Managers
determines that it is in the best interest of the Company.
9
10.4 Cancellation of Certificate. Upon the completion of the winding up of
the Company and the distribution of the Company's assets, the Company shall be
terminated and the Board of Managers shall cause the Company to execute and file
a Certificate of Cancellation in accordance with Section 18-203 of the Act.
ARTICLE 11
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TRANSFER OF INTERESTS IN THE COMPANY
The Member may sell, assign, transfer, convey, gift, exchange, or otherwise
dispose of any or all of its Common Interests and, with the written consent of
the Member, any assignee of such Common Interests shall be admitted as a member
of the Company.
ARTICLE 12
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EXCULPATION AND INDEMNIFICATION
12.1. Exculpation. Notwithstanding any other provisions of this Agreement,
whether express or implied, or obligation or duty at law or in equity, none of
the Member, or any officers, directors, stockholders, employees,
representatives, or agents of the Member, nor any Manager of the Company, nor
any officer, employee, representative, or agent of the Company (individually, a
"Covered Person" and, collectively, the "Covered Persons") shall be liable to
the Company or any other person for any act or omission (in relation to the
Company, this Agreement, any related document, or any transaction or investment
contemplated hereby or thereby) taken or omitted by a Covered Person, provided
such act or omission does not constitute fraud, willful misconduct, bad faith,
or gross negligence.
12.2. Indemnification. To the fullest extent permitted by law, the Company
shall indemnify and hold harmless each Covered Person from and against any and
all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements, and other amounts arising from any and all claims, demands,
actions, suits, or proceedings, civil, criminal, administrative, or
investigative ("Claims"), in which the Covered Person may be involved, or
threatened to be involved, as a party or otherwise, by reason of its management
of the affairs of the Company or which relates to or arises out of the Company
or its property, business, or affairs. A Covered Person shall not be entitled
to indemnification under this Section 12.2 with respect to (i) any Claim with
respect to which such Covered Person has engaged in fraud, willful misconduct,
bad faith, or gross negligence or (ii) any Claim initiated by such Covered
Person unless such Claim (or part thereof) (A) was brought to enforce such
Covered Person's rights to indemnification hereunder, or (B) was authorized or
consented to by the Member. Expenses incurred by a Covered Person in defending
any Claim shall be paid by the Company in advance of the final disposition of
such claim upon receipt by the Company of an undertaking by or on behalf of such
Covered Person to repay such amount if it shall be ultimately determined that
such Covered Person is not entitled to be indemnified by the Company as
authorized by this Section 12.2.
12.3. Amendments. Any repeal or modification of this Article 12 by the
Member shall not adversely affect any rights of such Covered Person pursuant to
this Article 12, including the right to indemnification and to the advancement
of expenses of a Covered Person existing at the time of such repeal or
modification with respect to any acts or omissions occurring prior to such
repeal or modification.
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ARTICLE 13
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GENERAL PROVISIONS
13.1. Amendments. Amendments to this Agreement and to the Certificate of
Formation shall be approved in writing by the Member. An amendment shall become
effective as of the date specified in the approval of the Member or, if none is
specified, as of the date of such approval or as otherwise provided in the Act.
13.2. Severability. If any provision or clause of this Agreement is held
to be invalid or unenforceable for any reason, such provision or clause shall be
ineffective to the extent of such invalidity or unenforceability; provided,
however, that the remaining provisions and clauses will continue in full force
without being impaired or invalidated in any way unless such invalid or
unenforceable provision or clause shall be so significant as to materially
affect the expectations of the member(s) regarding this Agreement. Otherwise,
any invalid or unenforceable provision or clause shall be replaced by the
member(s) with a valid provision or clause which most closely approximates the
intent and economic effect of the invalid or unenforceable provision.
13.3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws.
13.4. Binding Effect. This Agreement shall bind and inure to the benefit
of the Member.
13.5. Additional Documents and Acts. The Member agrees to execute and
deliver such additional documents and instruments and to perform such additional
acts as may be necessary or appropriate to effectuate, carry out, and perform
all of the terms, provisions, and conditions of this Agreement and of the
transactions contemplated hereby.
13.6. No Third-Party Beneficiary. This Agreement is made solely for the
benefit of the Member and, except as expressly provided in Article 12 hereof in
respect of Covered Persons, no other person shall have any rights, interest, or
claims hereunder or otherwise be entitled to any benefits under or on account of
this Agreement as a third-party beneficiary or otherwise.
13.7. Limited Liability Company. The Member intends to form a limited
liability company and does not intend to form a partnership under the laws of
the State of Delaware or any other laws.
13.8. Waiver. No right under this Agreement may be waived, except by an
instrument in writing signed by the party sought to be charged with the waiver.
13.9. General Construction Principles. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. In this Agreement, unless the
context clearly requires otherwise: (a) The plural includes the singular, the
singular includes the plural, and the part includes the whole; (b) "amend" shall
mean amend, amend and restate, supplement, or modify; and "amended" and
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"amendment" shall have meanings correlative to the foregoing; (c) in the
computation of periods of time from a specified date to a later specified date,
"from" shall mean from and including; "to" and "until" shall mean to but
excluding; and "through" shall mean to and including; (d) "hereof," "herein,"
and "hereunder" (and similar terms) in this Agreement refer to this Agreement as
a whole and not to any particular provision of this Agreement; (e) "including"
(and similar terms) shall mean including without limitation (and similarly for
similar terms); (f) "or" has the inclusive meaning represented by the phrase
and/or; and (g) any reference to an Article, Section, or other subdivision is
to an Article, Section, or such other subdivision of this Agreement.
IN WITNESS WHEREOF, the Member has executed and delivered this Limited
Liability Company Agreement as of the day and year first above written.
MEMBER:
HUNTSMAN ICI CHEMICALS LLC,
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