Exhibit 5.2
May 2, 2001
To: Huntsman International LLC
500 Huntsman Way
Salt Lake City
UT 84108
USA
Tioxide Group
Haverton Hill Road
Billingham
TS23 1PS
Dear Sirs,
Huntsman International LLC, Eurofuels LLC, Eurostar Industries LLC,
Huntsman EA Holdings LLC, Huntsman Ethleneamines Ltd.,
Huntsman International Financial LLC, Huntsman International Fuels, L.P.,
Huntsman Propylene Oxide Holdings LLC, Huntsman Propylene Oxide Ltd.,
Huntsman Texas Holdings, LLC,
Tioxide Americas Inc. and Tioxide Group
Registration Statement on Form S-4 (File No. 333-58578,
333-58578-01 through 333-58578-11),
"Registration Statement"
1. We have acted as special English legal advisers for Huntsman International
LLC (the "Company") and its subsidiary, Tioxide Group, a private company with
unlimited liability incorporated under the laws of England and Wales ("Tioxide
Group" or "Guarantor"), in connection with the indenture (the "Indenture") dated
13 March 2001 and made between Huntsman International LLC, each of the
Guarantors named therein (including Tioxide Group) and Deutsche Bank AG London.
We refer in particular to the guarantee (the "Guarantee") provided by the
Guarantor, the terms of
which are set out in the Indenture and in the form of the Guarantee, attached as
Annex D to Appendix I, endorsed on the notes. The Indenture and the Guarantee
are collectively referred to in this letter as the "Documents".
2. We have been asked to provide this opinion to you by Hunstman Corporation.
3. We have examined the Documents and we have relied upon the statements as to
factual matters contained in or made pursuant to each of the Documents. We
express no opinion as to any agreement, instrument or other document other than
as and only to the extent specified in this letter. We have not been involved in
the preparation or negotiation of the Indenture or the Guarantee and our role
has been limited to the writing of this letter. We have not investigated whether
any party to any of the Documents is or will be, by reason of the transactions
contemplated by the Documents, in breach of any of their respective obligations
under any agreement, instrument or document. Further, it should be understood
that we have not been responsible for investigating or verifying the accuracy of
any facts or the reasonableness of any statement of opinion or intention
contained in or relevant to any Document.
4. This opinion is limited to English law as currently applied by the English
courts and is given on the basis that it will be governed by and construed in
accordance with English law as at the date of this opinion. Accordingly, we
express no opinion herein with regard to any other system of law. In particular,
we express no opinion on European Union law as it affects any jurisdiction other
than England. To the extent that the laws of any other jurisdiction may be
relevant, including, without limitation, the federal laws of the United States
of America or the laws of any State thereof, we express no opinion as to such
laws, we have made no investigation thereof, and our opinion is subject to the
effect of such laws.
5. The opinions given in this letter are given on the basis of the assumptions
in paragraph 6 and is subject to the qualifications set out in paragraph 8. The
opinion given in this letter are strictly limited to the matters stated in
paragraph 7 and do not extend to any other matters.
Assumptions
6. In considering the Documents and for the purpose of rendering this opinion we
have with your consent and without any further enquiry assumed:
(a) the legal capacity of all natural persons;
(b) the genuineness of all signatures on, and the authenticity and
completeness of, all documents submitted to us as originals, the conformity
to
original documents of all documents submitted to us as certified or
photostatic or facsimile copies and the authenticity of the originals of
such latter documents;
(c) that, where a document has been examined by us in draft or specimen
form, it will be or has been executed in the form of that draft or
specimen;
(d) that each of the statements contained in a certificate of a director of
Tioxide Group dated April 18, 2001, attached as Appendix I, is true and
correct as at the date hereof;
(e) that each of the parties to the Documents has all corporate and other
power and capacity to enter into and perform all of its obligations
thereunder under all applicable laws (other than, in the case of the
Tioxide Group, the laws of England);
(f) (i) the due authorisation by all requisite action, corporate or
other, and the due execution and delivery by each of the parties
thereto of the Documents and the validity and binding effect of
such authorisation, execution and delivery under all applicable
laws (other than, in the case of Tioxide Group, the laws of
England);
(ii) that all consents, approvals, notices, filings, recordations,
publications and registrations which are necessary under any
applicable laws or regulations (other than, with respect to
Tioxide Group, the laws of England, as to which we express our
opinion in paragraph 7(d)) in order to permit the execution,
delivery or performance of the relevant Document have been or
will be duly made or obtained within the period permitted by such
laws or regulations;
(g) that the Documents have been unconditionally delivered by Tioxide Group
and are not subject to any escrow or other similar arrangement;
(h) that the Documents have been entered into for bona fide commercial
reasons and on arm's length terms by each of the parties thereto;
(i) no fraud, coercion, undue influence or duress exists or was exerted
resulting in the entry into of the Documents, such as to render any or all
of them void or voidable;
(j) that the representations and warranties given by each party contained
in the Documents are and continue to be true, correct, accurate and
complete;
(k) that the terms of the Documents are observed and performed by the
parties thereto and that all conditions as to the effectiveness of the
Documents and the obligations of the parties to the Documents have been
satisfied or waived in accordance with the terms thereof;
(l) that the execution, delivery and performance of each of the Documents
by Tioxide Group was a proper and bona fide exercise of its directors'
powers and will materially benefit Tioxide Group and be in its best
interests;
(m) that the information revealed by our oral enquiry on May 1, 2001 in
connection with the public file relating to Tioxide Group kept at the
Companies Registration Office in London referred to in paragraph 7(a)(i)
below and our oral enquiry yesterday of the Central Registry of Winding up
Petitions referred to in paragraph 7(a)(ii) below was accurate in all
respects and has not since the time of such search or enquiry been altered;
(n) that each of the Indenture and the Guarantee have the same meaning and
effect as it would have if it were governed by English Law;
(o) that no party to any of the Documents would be entitled to claim the
benefit of any statute or rule of law which affords sovereign entities
immunity from prosecution or immunity from enforcement of a court judgment
or an arbitration award;
(p) that the Documents or any transaction contemplated thereby does not
include any financing or refinancing of an acquisition of shares in
contravention of section 151 of the Companies Act 1985; and
(q) that as at May 1, 2001, the giving of the Guarantee did not cause the
Guarantor to be in default under the borrowing powers of the Guarantor's
Memorandum and Articles of Association.
Opinion
7. On the basis of the assumptions set out above and subject to the
qualifications set forth below and any matters not disclosed to us and having
regard to such considerations of English law in force applying as at the date of
this opinion as we consider relevant, we are of the opinion that:
(a) Tioxide Group has been duly incorporated in Great Britain and
registered in England and Wales and:
(i) our oral enquiry on May 1, 2001 in connection with the public file relating
to Tioxide Group kept at the Companies Registration Office in London
revealed no order or resolution for the winding up of Tioxide Group and no
notice of appointment in respect of Tioxide Group of a liquidator,
receiver, administrative receiver or administrator;
(ii) the Central Registry of Winding up Petitions has confirmed in response to
our oral enquiry made on May 1, 2001 that no petition for the winding up of
Tioxide Group has been presented within the period of six months covered by
such enquiry; and
(b) the execution of each of the Documents has been duly authorized by all
necessary corporate action on the part of Tioxide Group and each of the
Documents has been duly executed by Tioxide Group which execution does not
and will not result in any violation by Tioxide Group of any term of its
Memorandum or Articles of Association or of any law or regulation having
the force of law in England and applicable to English Companies generally;
(c) the choice of the laws of the State of New York as the governing law of
the Documents will be recognized and given effect by the courts in England;
(d) there are no consents, approvals, authorisations or orders required to
be obtained by Tioxide Group under the laws of England from any
governmental or other regulatory agencies in England in connection with the
execution, delivery and performance of the Documents by Tioxide Group,
except that no opinion is rendered as to such consents, approvals,
authorisations or orders which may be necessary by virtue of the specific
business in which Tioxide Group may be engaged;
Qualifications
8. The opinions set forth above are also subject to the following
qualifications:
(a) the search at the Companies Registration Office referred to in
paragraph 7(a)(ii) above is not conclusively capable of revealing whether
or not:
(i) a winding up order has been made or a resolution passed for the winding
up of a company; or
(ii) an administration order has been made; or
(iii)a receiver, administrative receiver, administrator or liquidator has been
appointed,
as notice of these matters may not be filed with the Registrar of Companies
immediately and, when filed, may not be entered on the public file of the
relevant company immediately. In addition, that search is not capable of
revealing, prior to the making of the relevant order, whether or not a
winding up petition or a petition for an administration order has been
presented;
(b) the enquiry at the Central Registry of Winding up Petitions referred to
in paragraph 7(a)(i) above relates only to a compulsory winding up and is
not conclusively capable of revealing whether or not a winding up petition
in respect of a compulsory winding up has been presented since details of
the petition may not have been entered on the records of the Central
Registry of Winding up Petitions immediately or, in the case of a petition
presented to a County Court, may not have been notified to the Central
Registry and entered on such records at all, and the response to an enquiry
only relates to the period of six months prior to the date when the enquiry
was made;
(c) this opinion is subject to and enforcement may be limited by all
applicable laws relating to bankruptcy, insolvency, administration,
liquidation, fraudulent conveyance, reorganisation, moratorium and other
laws of general application relating to or affecting the rights of
creditors;
(d) we express no opinion as to the enforceability under English law of any
rights or obligations of any party under the Documents, including without
limitation, Tioxide Group
(e) a certificate, determination, notification, minute or opinion might be
held by the English courts not to be conclusive if it could be shown to
have an unreasonable or arbitrary basis or not to have been reached in good
faith or in the event of manifest error, despite any provision in any
document to the contrary
(f) there is some possibility that an English court would hold that a
judgment on an agreement, whether given by an English court or elsewhere,
would supersede such agreement to all intents and purposes so that the
obligations set forth therein would not be held to survive such a judgment;
(g) a judgment rendered by a court other than in England and Wales (a
"Foreign Court") has no direct operation in England but may be enforceable
by action, counter-claim or registration (where available) or be recognised
by the English courts as a defence to an action or as conclusive of an
issue in an action. A judgment rendered by a Foreign Court would not be
recognised or enforced by the English courts
(i) unless the Foreign Court was duly invested with jurisdiction under
all applicable laws and had jurisdiction under English conflict of
laws rules; or
(ii) unless the judgment was final and conclusive under the law of the
Foreign Court which rendered it (in this respect a judgment may be
final and conclusive even though it is subject to an appeal and even
though an appeal against it is actually pending in the foreign country
where it was given. However, in such circumstances the English court
is likely only to enforce it subject to conditions preserving the
interests of the party appealing); or
(iii) unless the judgment is for a debt or a definite sum of money
(not being of a revenue or penal nature); or
(iv) if the matter had previously been determined by an English court;
or
(v) if such judgment was obtained by fraud or in proceedings that
offended English concepts of natural justice; or
(vi) if the recognition or enforcement thereof were contrary to public
policy or to section 5 of the Protection of Trading Interests Act
1980; or
(vii) if the recognition or enforcement thereof would involve the
enforcement of foreign revenue or penal or other public laws; or
(viii) if the recognition or enforcement thereof were contrary to the
Administration of Justice Act 1920 or the Foreign Judgments
(Reciprocal Enforcement) Act 1933 or the Civil Jurisdiction and
Judgments Act 1982 or subordinate legislation made thereunder, to the
extent applicable;
(ix) if the party seeking enforcement (being a party who is not
ordinarily resident in some part of the United Kingdom or resident in
a member state of the European Union) does not provide security for
costs, if ordered to do so by the English court;
(h) we express no opinion on any submission by the parties to the Documents
to the jurisdiction of the courts of a jurisdiction other than England and
Wales contained in the Documents, nor do we express any opinion on any
provision of the Documents ousting the jurisdiction of any court of a
jurisdiction other than England and Wales;
(i) we express no opinion as to the enforceability of any benefit or
obligation which any agreement may purport to establish in favour of any
person who is not party to such agreement;
(j) we express no opinion as to the effectiveness of any provision which
purports to secure the benefit of funds held by one party exclusively for
the benefit of other persons in the absence of segregation and security
arrangements;
(k) the effectiveness of terms exculpating a party from a liability or duty
otherwise owed is limited by law;
(l) we express no opinion as to the effect on the opinions expressed herein
of (i) the compliance or non-compliance of any party to the Documents with
any laws or regulations applicable to it, or (ii) the legal or regulatory
status or the nature of the business of any party to the Documents;
(m) the guarantee given by the Guarantor in the Guarantee contains various
express provisions intended to prevent the liabilities of the Guarantor
under its guarantee being exonerated, discharged, reduced or extinguished
by reason of the occurrence of events or conduct or action of any of the
parties. The English courts construe guarantees strictly and the ability to
rely on the protective language contained in the guarantee will need to be
considered specifically in the context of each particular situation;
(n) we draw your attention to the fact that where a person who is not a
party to a contract (a "Third Party") has a right under the Contracts
(Rights
of Third Parties) Act 1999 to enforce a term of the contract in his own
right, in certain circumstances the parties to the contract may not, by
agreement, rescind the contract, or vary it in such a way as to extinguish
or alter the entitlement of the Third Party under that right, without his
consent.
9. We express no opinion on the accuracy of the facts, or the reasonableness of
any statements of opinion, contained in the Offering Memoranda dated April 24,
2001 and March 13, 2001 or Registration Statement dated April 9, 2001, or on
whether any material facts have been omitted from it.
Benefit of opinion
11. This opinion is addressed to you solely for your benefit in connection with
the entry into of the Documents. It is not to be transmitted to anyone else nor
is it to be relied upon by anyone else or for any other purpose or quoted or
referred to in any public document or filed with anyone without our express
prior written consent.
Yours faithfully,
/S/ Skadden, Arps, Slate, Meagher & Flom LLP
APPENDIX I
APPENDIX I
CERTIFICATE OF OFFICER
----------------------
OF
--
TIOXIDE GROUP
-------------
I, J. Kimo Esplin, an officer of Tioxide Group, registered number
249759 (the "Guarantor"), do hereby certify for and on behalf of the Guarantor
that:
1. Attached hereto as Annex A is a full, true and correct copy of the
-------
Articles of Association of the Guarantor as in force on the date hereof
(the "Articles"); as of the date hereof no amendment or other document
relating to or affecting the Articles has been adopted and no action has
been taken by the Guarantor or its stockholders, directors or officers, in
contemplation of the filing of any amendment or other document relating to
the Articles or in contemplation of the liquidation or dissolution of the
Guarantor.
2. Attached hereto as Annex B is a full, true and correct copy of the
-------
Memorandum of Association of the Guarantor as in full force and effect on
the date hereof (the "Memorandum").
3. Attached hereto as Annex C are full, true and correct copies of
-------
resolutions duly passed by the Board of Directors of the Guarantor on 13th
March, 2001. Such resolutions have not been amended, modified, rescinded or
revoked and are the only resolutions adopted by the Board of Directors of
the Guarantor or any committee thereof relating to (i) the execution and
delivery by the Guarantor of a guarantee of the obligations of the Issuer
under the (Euro)200,000,000 10 1/8% Senior Subordinated Notes due 2009 of
Huntsman International LLC (the "Company") and the other aspects of the
financing contemplated thereby (the "Guarantee"), and (ii) the execution
and delivery of the Indenture dated as of March 13, 2001 (the "Indenture"),
by and among the Company, the Guarantor, the other guarantors named therein
(the "Other Guarantors") and The Bank of New York, as trustee (the
"Trustee"). Each of the Directors of the Company having any interest in the
same has duly declared his interest therein and was entitled to vote on and
enter into such resolution. The Company has not breached and is not in
breach of, and following completion of the transactions described above,
will not as a consequence thereof be in breach of any provision of the
Memorandum or the Articles or any other obligation of the Company.
4. Attached hereto as Annex D is a true and correct copy of the executed
-------
Guarantee which is substantially as set forth in the Indenture as executed and
is in substantially the form approved by, or pursuant to authority duly
delegated by, the Guarantor's Board of Directors.
5. The Indenture, as executed and delivered by the Company, the Guarantor,
the Other Guarantors and the Trustee, is in substantially the form approved by,
or pursuant to authority duly delegated by, the Guarantor's Board of Directors.
6. Each person who, as a director of the Guarantor signed, by facsimile or
otherwise, the Indenture, the Guarantee or any other document delivered prior
hereto or on the date hereof in connection with the execution and delivery of
the Indenture and the issuance, sale and guarantee of the Notes to the Initial
Purchasers was duly elected or appointed, as the case may be, qualified and
acting as such director or officer of the Guarantor at the respective times of
such execution and delivery or issuance and sale, as the case may be, and the
signatures of such persons appearing on such documents are their genuine
signatures.
7. The Company is not unable and has not been deemed unable to pay its
debts within the meaning of Section 123 of the Insolvency Act 1986. Further, no
order has been made or resolution passed for the compulsory or voluntary winding
up of the Company and, to the best of my knowledge and belief having made all
reasonable enquiry, (a) no petition has been presented for the compulsory or
voluntary winding up of the Company or the making of an administration order in
respect of the Company and (b) no liquidation, receiver, administrator or
administrative receiver has been appointed in respect of the Company or any part
of its undertaking or assets.
IN WITNESS WHEREOF, I have hereunto signed my name this 18th day of
April, 2001.
By: /s/ J. Kimo Esplin
-----------------------
Name: J. Kimo Esplin
Title: Director
ANNEX A
THE COMPANIES ACT OF 1985
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AN UNLIMITED COMPANY HAVING A SHARE CAPITAL
------------------------------------------------------
ARTICLES OF ASSOCIATION
of
TIOXIDE GROUP
-------------------------------------------------
PRELIMINARY
1.(a) The Regulations contained in Table A in the Schedule to the Companies
(Tables A to F) Regulations 1985 (SI 1985 No. 805) as amended by the
Companies (Tables A to F) (Amendment) Regulations 1985 (SI 1985 No. 1052)
(such Table being hereinafter called Table A) shall apply to the Company
save in so far as they are excluded or varied hereby and such Regulations
(save as so excluded or varied) and the Articles hereinafter contained
shall be the articles of association of the Company.
(b) In these Articles the expression the Act means the Companies Act 1985, but
so that any reference in these Articles to any provision of the Act shall
be deemed to include a reference to any statutory modification or
re-enactment of that provision for the time being in force.
2. In these Articles, unless the context otherwise requires:
business day means any day (excluding a Saturday or a Sunday) on which banks are
open in London and New York for the transaction of normal banking business;
Ordinary Divided means, in respect of each financial year, the Gross Dividend
minus the aggregate Preference Divided payable in respect of such financial year
in accordance with the provisions of Article 4;
Aggregate Class A Interest shall be calculated as follows:
9
Aggregate Class A Interest = --- x Ordinary Dividend
909
Aggregate Ordinary Share Interest shall be calculated as follows:
15
900
Aggregate Ordinary Share Interest = --- x Ordinary Dividend
909
SHARE CAPITAL
3. The capital of the Company is (Euro)310,000,000, divided into 100 ordinary
shares of (Euro)1 each (Ordinary Shares), 900 Class A Ordinary Shares of (Euro)1
each (Class A Shares) and 309,999,000 preference shares of (Euro)1 each
(Preferences Shares). The special rights and restrictions attaching to these
shares are as set out in Articles 4, 5, 6, 7, 8 and 9.
Income
4. The profits which the Company may determine to distribute by way of dividend
in respect of each financial year of the Company (the Gross Dividend) shall be
applied:
(a) first, in paying to the holders of the Preference Shares as a dividend on
the Preference Shares, a fixed cumulative preferential dividend (the
Preference Dividend) at the rate of seven (7) per cent per annum
(exclusive of any associated tax credit) of the nominal value of each
Preference Share held by them. The Preference Dividend shall accrue on a
daily basis and shall be payable annually in arrear on 30 June (or if such
date is not a business day on the next following business day) in each
year in respect of the year ending on that date. The first such payment
shall be made on 30 June 2000 in respect of the period from the date of
issue of the Preference Share(s) concerned until 30 June 2000. The
Preference Dividend shall be paid to the holders of the Preference Shares
whose names appear on the register at 12:00 noon 2 business days before
the relevant dividend payment date;
(b) second, in paying a dividend on the Ordinary Shares and Class A Shares.
The dividend shall be applied as between the Class A Shareholders and the
Ordinary Shareholders in the following manner.
(i) the Company shall first calculate the Aggregate Class A Interest
and Aggregate Ordinary Share Interest;
(ii) the Aggregate Class A Interest shall then be divided amongst the
holders of Class A Shares pro rata in accordance with the
aggregate nominal value of the Class A Shares held by them with
any fractions of a dividend being rounded down to the nearest
penny; and
- --------------------------------------------------------------------------------
1 By written resolution dated 29 June 1999 the authorised capital of the
Company was increased to (Euro)373,000,000 by the creation of 63,000,000
additional preference shares of (Euro)1 each.
16
(iii) the Aggregate Ordinary Share Interest shall then be divided
amongst the holders of Ordinary Shares pro rata in accordance
with the aggregate nominal value of the Ordinary Shares held by
them with any fractions of a dividend being rounded down to the
nearest penny; and
(c) any fractions of a dividend remaining shall be retained by the Directors
and applied for the benefit of the Company.
Capital
5. On a distribution of assets of the Company among its members on a winding up
or other return of capital, the assets of the Company available for distribution
amongst its members in accordance with the Act shall be applied as follows:
(a) first in paying to the holders of Preference Shares, an amount equal to
the aggregate of the capital paid up or credited as paid up on each
Preference Share and a sum equal to any arrears and accruals of the
Preference Dividend (whether earned or declared or not) payable on such
share calculated up to and including the date of the commencement of the
winding up or (in any other case) the date of the return of capital and
the Preference Shares shall have no further rights of participation in the
assets of the Company;
(b) secondly in paying pari passu to the holders of the Class A Shares and the
Ordinary Shares pro rata the par value of their respective holdings of
Class A Shares and Ordinary Shares and the Class A Shares shall have no
further rights of participation in the assets of the Company; and
(c) thirdly, in distributing any balance of such assets amongst the holders of
the Ordinary Shares.
Voting
6. The holders of Preference Shares shall be entitled to receive notice of and
to attend any general meeting of the Company but shall not have the right to
speak or vote in respect of their holdings of Preference Shares, subject to the
following exceptions:
6.1 if at the date of the meeting any part of any Preference Dividend is for
whatever reason in arrears for more than six months the holders of the
Preference Shares shall be entitled to attend, speak and vote on any
resolution at such meeting or any adjournment of it; or
6.2 if it is proposed at the meeting to consider any resolution approving the
winding up of the Company, the holders of the Preference Shares shall be
entitled to attend such a meeting and to speak and vote only on such
17
resolution or any motion for adjournment of the meeting before such
resolution is voted on.
7. If entitled to vote at a general meeting of the Company, every holder of
Preference Shares present in person or by proxy (or, being a corporation, by a
duly authorised representative) shall have one vote for every Preference Share
held by him.
8. The Class A Shares shall not carry the right to receive notice of or to
attend or vote at general meetings.
Variation of Rights
9. Subject to the provisions of the Act, if at any time the capital of the
Company is divided into different classes of shares, the rights attached to any
class may (unless otherwise provided by the terms of issue of the shares of that
class) be varied or abrogated, whether or not the Company is being wound up,
either with the consent in writing of the holders of three-quarters in nominal
value of the issued shares of the class or with the sanction of an extraordinary
resolution passed as a separate general meeting of the holders of the shares of
the class (but not otherwise). Such general meeting shall be conducted in
accordance with the provisions of these Articles governing the conduct of
general meetings.
ALLOTMENT OF SHARES
10.(a) Shares which are comprised in the authorised but unissued share capital
of the Company shall be under the control of the directors who may (subject to
Section 80 of the Act and to paragraphs (b) and (c) below) allot, grant options
over or otherwise dispose of the same, to such persons, on such terms and in
such manner as they think fit.
(b) The directors are generally and unconditionally authorised, for the
purposes of Section 80 of the Act, to exercise any power of the Company to allot
and grant rights to subscribe for or convert securities into shares of the
Company up to the amount of the authorised share capital with which the Company
is incorporated at any time or times during the period of five years from the
date of incorporation of the Company and the directors may, after that period,
allot any shares or grant any such rights under this authority in pursuance of
an offer or agreement so to do made by the Company within that period. The
authority hereby given may at any time (subject to the said Section 80) be
renewed, revoked or varied by ordinary resolution of the Company in general
meeting.
(c) In accordance with Section 91(1) of the Act, the pre-emption provisions
in Section 89(1) and the provisions of sub-sections 90(1) to (6) (inclusive) of
the Act shall not apply to the Company.
(d) Regulation 3 in Table A shall not apply to the Company.
SHARES
11. The lien conferred by Regulation 8 in Table A shall attach also to fully
paid-up shares, and the Company shall also have a first and paramount lien on
all shares, whether fully paid or not, standing registered in the name of any
person indebted or under liability to the Company, whether he shall be the sole
registered holder thereof or shall be one of two or more joint holders, for all
moneys presently payable by him or his estate to the Company. Regulation 8 in
Table A shall be modified accordingly.
12. The liability of any member in default in respect of a call shall be
increased by the addition at the end of the first sentence of regulation 18 in
Table A of the words "and all expenses that may have been incurred by the
Company by reason of such non-payment".
13. Regulation 24 and 25 in Table A shall not apply to the Company.
14.(a) The Company may by special resolution:
(i) increase the share capital by such sum to be divided into shares
of such amount as the resolution may prescribe;
(ii) consolidate and divide all or any of its share capital into shares
of a larger amount than its existing shares;
(iii) subdivide its shares, or any of them, into shares of a smaller
amount than its existing shares;
(iv) cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any
person;
(v) reduce its share capital and any share premium account in any way
(including, without limitation, by the purchase by the Company of
its shares or any of them).
(b) Subject to the provisions of the Act, the Company may enter into any
contract for the purchase of all or any of its shares of any class
(including any redeemable shares) and any contract under which it may,
subject to any conditions, become entitled or obliged to purchase all or
any of such shares and may make payments in respect of the redemption or
purchase of such shares otherwise than out o distributable profits or
the proceeds of a fresh issue of shares. Every contract entered into
pursuant to this
Article shall be authorised by such resolution of the Company as may for
the time being be required by law, but subject thereto the directors
shall have full power to determine or approve the terms of any such
contract. Neither the Company nor the directors shall be required to
select the shares in question rateably or in any other particular manner
as between the holders of shares of the same class or as between them
and the holders of shares of any other class or in accordance with the
rights as to dividends or capital conferred by any class of shares.
Subject to the provisions of the Act, the Company may agree to the
variation of any contract entered into pursuant to this article and to
the release of any of its rights or obligations under any such contract.
Norwithstanding anything to the contrary contained in the Articles, the
rights attaching to any class of shares shall not be deemed to be varied
by anything done by the Company pursuant to this Article. Regulations
32, 34 and 35 in Table A shall not apply to the Company.
GENERAL MEETINGS AND RESOLUTIONS
15(a) Every notice convening a general meeting shall comply with the
provisions of Section 372(3) of the Act as to giving information to
members in regard to their right to appoint proxies; and notices of and
other communications relating to any general meeting which any member is
entitled to receive need not be sent to the directors or the auditors
for the time being of the Company (unless the law otherwise provides),
and Regulation 38 of Table A shall be modified accordingly.
(b) Regulation 38 of Table A shall be further modified by the deletion in
the first sentence of the words "or a resolution appointing a person a
director" and by the deletion in the second sentence of the words "at
least fourteen clear days notice" and substitution therefore of the
words "at least seven clear days' notice".
16. The second sentence of Regulation 40 of table A shall be deleted and
replaced by the following: "One person entitled to vote upon the
business to be transacted, being a member or a proxy for a member or a
duly authorised representative of a corporation, shall be a quorum".
17.(a) If a quorum is not present within half n hour from the time appointed
for a general meeting, the general meeting shall stand adjourned to the
same day in the next week at the same time and place or to such other
day and at such other time and place as the directors may determine; and
if at the adjourned general meeting a quorum is not present within half
an hour from the time appointed therefor such adjourned general meeting
shall be dissolved.
(b) Regulation 41 in Table A shall not apply to the Company.
18. A poll may be demanded by the chairman of by any member present in person
or by proxy and entitled to vote and Regulation 46 of Table A shall be modified
accordingly.
19. Regulation 53 of Table A shall be modified by the addition at its end of
the following sentence: "If such a resolution in writing is described as a
special resolution or as an extraordinary resolution or as an elective
resolution, it shall have effect accordingly."
VOTES OF MEMBERS
20. An instrument appointing a proxy shall be writing, executed by or on
behalf of the appointor and in any common form or in such other form as the
directors may approve. It shall be deemed to confer authority to vote on any
amendment of a resolution, put to the meeting, for which it is given as the
proxy thinks fit. The instrument of proxy shall, unless the contrary is stated
therein, be valid as well for any adjournment of the meeting as for the meeting
to which it relates. Regulations 60 and 61 of table A shall not apply to the
Company.
21. Regulation 62 of Table A shall be modified by the deletion in paragraph
(a) of the words "deposited at" and by the substitution for them of the words
"left at or sent by post or by facsimile transmission to", by the substitution
in paragraph (a) of the words "one hour" in place of "48 hours", by the deletion
in paragraph (b) of the word "deposited" and by the substitution for it of the
words "left at or sent by post or by facsimile transmission" and by the
substitution in paragraph (b) of the words "one hour" in place of "24 hours".
APPOINTMENT OF DIRECTORS
22.(a) Regulation 64 in table A shall not apply to the Company an Regulation 65
in table A shall be modified by the deletion of the words "approved by
resolution of the directors and willing to set".
(b) The maximum number and minimum number respectively of the directors may
be determined from time to time by ordinary resolution in general
meeting of the Company. Subject to and in default of any such
determination there shall be no maximum number of directors and the
minimum number of directors shall be one. Whensoever the minimum number
of the directors shall be one, a sole director shall have authority to
exercise all the powers and discretions by Table A and by these Articles
expressed to be vested in the directors generally, and Regulation 89 in
Table A shall be modified accordingly.
(c) An alternate director shall cease to be alternate director if his
appointor ceases for any reason to be a director. Regulation 67 of Table
A shall not apply to the Company.
(d) The directors may delegate any of their powers to committees
consisting of such person or persons (whether directors or not) as
they think fit. Regulation 72 of Table A shall be modified
accordingly.
(e) The directors shall not be required to retire by rotation and
Regulations 75 to 80 (inclusive) and the last sentence of
Regulation 84 of Table A shall not apply to the Company.
(f) No person shall be appointed a director at any general meeting
unless either;
(i) he is recommended by the directors; or
(ii) not less than fourteen nor more than thirty-five clear days
before the date appointed for the general meeting, notice
signed by a member qualified to vote at the general meeting
has been given to the Company of the intention to propose
that person for appointment, together with notice signed by
that person of his willingness to be appointed.
(g) Subject to paragraph (f) above, the Company may by ordinary
resolution in general meeting appoint any person who is willing to
act to be a director, either to fill a vacancy or as an additional
director.
(h) The directors may appoint a person who is willing to act to be a
director, either to fill a vacancy or as an additional director,
provided that the appointment does not cause the number of
directors to exceed any number of determined in accordance with
paragraph (b) above as the maximum number of directors.
(i) A member or members holding a majority of the shares for the time
being carrying the right to vote at a general meeting of the
Company shall have power from time to time and at any time to
appoint any person or persons as director or directors either as an
additional director or to fill any vacancy and to remove from
office any director howsoever appointed. Any such appointment or
removal shall be effected by an instrument in writing signed by the
member or members making the same, or in the case of a member
being a company, signed by one of its directors on its behalf, and
shall take effect upon lodgment at the registered office of the
Company.
(j) Subject to (i) above, no director shall be required to retire or
vacate his office, and no person shall be ineligible for
appointment as a director, by reason of his having attained any
particular age.
BORROWING POWERS
23. The directors may exercise all the powers of the Company to borrow money
without limit as to amount and upon such terms and in such manner as they think
fit, and subject (in the case of any security convertible into shares) to
Section 80 of the Act to grant any mortgage, charge or standard security over
its undertaking, property and uncalled capital, or any part thereof, and to
issue debenture stock, and other securities whether outright or as security for
any debt, liability or obligation of the Company or of any third party.
ALTERNATE DIRECTORS
24.(a) An alternate director shall not be entitled as such to receive any
remuneration from the Company, save that he may be paid by the Company
such part (if any) of the remuneration otherwise payable to his appointor
as such appointor may be notice in writing to the Company from time to
time direct, and the first sentence of Regulation 66 in Table A shall be
modified accordingly.
(b) A director, or any such other person as is mentioned in Regulation 65 in
Table A, may act as an alternate director to represent more than one
director, and an alternate director shall be entitled as any meeting of
the directors or of any committee of the directors to one vote for every
director whom he represents in addition to his own vote (if any) as a
director, but he shall count as only one for the purpose of determining
whether a quorum is present.
GRATUITIES AND PENSIONS
25.(a) The directors may exercise the powers of the Company to provide benefits,
either by the payment of gratuities or pensions or by insurance or in any
other manner whether similar to the foregoing or not, for any director or
former director or the relations, connections or dependants of any
director or former director who holds or has held any executive office or
employment with the Company or with any body corporate which is or has
been a subsidiary of the Company or with a predecessor in business of the
company or of any such body corporate and may contribute to any fund and
pay premiums for the purchase or provision of any such benefit. No
director or former director shall be accountable to the Company or the
members for any benefit provided pursuant to this Article and the receipt
of any such benefit shall not disqualify any person from being or
becoming a director of the Company.
(b) Regulation 87 in Table A shall not apply to the Company.
PROCEEDINGS OF DIRECTORS
26.(a) A director may vote, at any meeting of the directors or of any committee
of the directors, on any resolution, notwithstanding that it in any way
concerns or relates to a matter in which he has, directly or indirectly,
any kind of interest whatsoever, and if he shall vote on any such
resolution as aforesaid his vote shall be counted; and in relation to any
such resolution as aforesaid he shall (whether or not he shall vote on
the same) be taken into account in calculating the quorum present at the
meeting.
(b) Regulations 94 to 97 (inclusive) in Table A shall not apply to the
Company.
(c) Any director or his alternate may validly participate in a meeting of the
directors or a committee of directors through the medium of video and/or
telephone conference or similar form of communication equipment provided
that all persons participating in a meeting are able to hear and speak to
each other throughout such meeting. A person so participating shall be
deemed to be present in person at the meeting and shall accordingly be
counted in a quorum and be entitled to vote. Subject to the Act, all
business transacted in such manner by the directors or a committee of the
directors shall for the purposes of the Articles be deemed to be validly
and effectively transacted at a meeting of the directors or of a committee
of the directors notwithstanding that fewer than two directors or
alternate directors are physically present at the same place. Such a
meeting shall be deemed to take place where the largest group of those
participating is assembled or, if there is no such group, where the
chairman of the meeting then is.
(d) If and for so long as there is a sole director, he may exercise all the
powers conferred on the directors by the Articles by resolution in writing
signed by him and Regulations 88, 89, 91 and 93 of Table A shall not
apply.
THE SEAL
27.(a) If the Company has a seal it shall only be used with the authority of the
directors or of a committee of directors. The directors may determine who
shall sign any instrument to which the seal is affixed and unless
otherwise so determined it shall be signed by a director and by the
secretary or a second director. The obligation under Regulation 6 in
Table A relating to the sealing of share certificates shall apply only if
the Company has a seal. Regulation 101 in Table A shall not apply to the
Company.
(b) The Company may exercise the powers conferred by Section 39 of the Act
with regard to having an official seal for use abroad, and such powers
shall be vested in the directors.
NOTICES
28.(a) Regulation 112 of Table A shall be modified by the deletion of the last
sentence and the substitution therefor of the following: "Any member
whose registered addressed is not within the United Kingdom shall be
entitled to have notices given to him at that address."
(b) Regulation 116 of Table A shall be modified by the deletion of the words
"within the United Kingdom".
INDEMNITY
29.(a) Every director or other officer or auditor of the Company shall be
indemnified out of the assets of the Company against all losses or
liabilities which he may sustain or incur in or about the execution of
the duties of his office or otherwise in relation thereto, including any
liability incurred by him in defending any proceedings, whether civil or
criminal, or in connection with any application under Section 744 or
Section 727 of the Act in which relief is granted to him by the Court,
and no director or other officer shall be liable for any loss, damage or
misfortune which may happen to or be incurred by the Company in the
execution of the duties of his office or in relation thereto. But this
Article shall only have effect in so far as its provisions are not
avoided by Section 310 of the Act.
(b) The directors shall have power to purchase and maintain for any
director, officer or auditor of the Company, insurance against any such
liability as is referred to in Section 310(1) of the Act.
(c) Regulation 188 in Table A shall not apply to the Company.
ANNEX B
ANNEX 2
THE COMPANIES ACT 1985
------------------------------------------------------
AN UNLIMITED COMPANY HAVING A SHARE CAPITAL
------------------------------------------------------
MEMORANDUM OF ASSOCIATION
of
TIOXIDE GROUP
(Adopted upon the re-registration of the
Company as an unlimited company on
29 June 1999)
------------------------------------------------------
1. The name of the Company is "Tioxide Group"/1/.
2. The Registered office of the Company will be situated in England and Wales.
3. Subject to clause 4 below, the objects for which the Company is established
are:
(A) In any part of the world to do all or any of the following things:
(1) To promote the production and use of titanium, zinc, lead and other
metals or their compounds, derivatives or alloys and in particular
titanium pigments, composite pigments and all other pigments.
(2) To carry on all kinds of research work incident or relating to the
production and use of titanium, zinc, lead and other metals and their
alloys and compounds and prepare for market all such articles.
- --------------------------------------------------------------------------------
/1/ (a) The Company's name was changed to British Tiear Limited on 1st January
1971.
(b) The Company's name was changed to Tioxide Group Limited on 29th December
1975.
(c) The Company's name became Tioxide Group PLC upon having re-registered at
a public limited company on 19th October 1981.
(d) The Company's name became Tioxide Group Limited upon it having
re-registered as a private limited company on 14th October 1991.
(e) The Company's name became Tioxide Group upon it having re-registered at
an unlimited company on 29 June 1999.
and things, and generally to carry on all kinds of metallurgical
operations.
(3) To carry on the business of manufacturing chemists and of
manufacturers, producers of and dealers in sulphuric and other
acids, alkalis and chemicals and chemical substances of every
description.
(4) To explore, erect, exercise, develop, finance and turn to
account all kinds of processes for the production of titanium,
zinc, lead and other metals and their compounds and alloys and
all kinds of plant and machinery for the production of the same
and for any such purpose to buy or otherwise acquire buildings,
plant, machinery, appliances and tools.
(5) To search for, prospect, examine and explore mines and ground in
any part of the world and to obtain information in regard to
mines, mining claims, mining districts and localities; to
acquire, take on lease or concession or otherwise to acquire any
interest therein, and to hold, sell, dispose of and deal with
any property supposed to contain titanium, zinc, lead or other
metals or minerals and undertakings connected therewith.
(6) To carry on the business of roasters, smelters, refiners,
rollers, galvanisers, and manufacturers of and dealers in
titanium, zinc, lead, and other metals and all by-products
thereof.
(7) To institute, enter into, carry on, assist or participate in
such mining, metallurgical, manufacturing, agricultural,
commercial, industrial and other operations, trades businesses
and undertakings, as may seem to the Company capable of being
conveniently carried on in connection with any of the objects of
the Company or which may be calculated directly or indirectly to
enhance the value of or render profitable any of the Company's
property or rights.
(B) To acquire by purchase, exchange, subscription or otherwise,
howsoever, and to hold or dispose of the whole or any portion of the
share or loan capital or the assets or undertaking of any company,
association, firm or person for the time being engaged, concerned, or
interested in any of the trades or businesses which this Company is
authorised to carry on and to subsidise or assist in any manner any
such company as aforesaid and to make and do or assist in making or
doing such arrangements and things as may be considered desirable
with a view to the extension or the economical or profitable conduct
of the business of any such company or calculated to promoted the
success thereof and generally to exercise the
rights, enjoy the privileges, and fulfil the obligations as holders of
shares or loan capital in any such company.
(C) To purchase, acquire, rent, build, construct, equip, execute, carry out,
improve, work, develop, administer, maintain, manage or control in any
part of the world works and convenience of all kinds, including therein
roads, ways, railways, tramways, carrying or transport undertakings, by
land, water, or air, stations, aerodromes, docks, harbors, piers, wharves,
canals, reserviors, water rights, waterworks, watercourses, bridges,
flumes, irrigations, embankments, hydraulic works, drainage, iron, steel
ordance, engineering and improvement works, gasworks, electrical works,
telegraphs, telephones, cables, timber rights, saw-mills, paper and pulp
mills, crushing mills, smelting works, quarters, collieries, coke ovens,
foundries, furnances, factories, warehouses, hotels, viaducts, aqueducts,
markets, exchanges, mints, ships, lighters, postal services, newspapers
and other publications, breweries, stores shops, churches, chapels, public
and private buildings, residences, places of amusement, recreation or
instruction, or any other works, whether for the purposes of the Company
or for sale or hire to or in return for any consideration from any other
company or persons and to contribute to or assist in the carrying out or
establishment, construction, maintenance, improvement, management,
working, control or superintendence thereof respectively, provided that no
telegraph, telephone and postal business shall be carried on in the United
Kingdom without the licence of the British Government.
(D) To manufacture, produce and deal in all kinds of articles and things
required for the purposes of or produced by any such business as aforesaid
or commonly dealt in by persons engaged in any such business, and all
substitutes for any of the articles and things above mentioned.
(E) To subscribe for, underwrite, purchase, or otherwise acquire, and to hold,
dispose of, and deal with the shares, stocks, securities and evidences of
indebtedness or the right to participate in profits or other similar
documents issued by any government, authority, corporation or body, or by
any company, association or body of persons, and any options or rights in
respect thereof, and to buy and sell foreign exchange.
(F) To co-ordinate, finance and manage all or any part of the operations of
any company which is a subsidiary company of or otherwise under the
control of the Company and generally to carry on the business of a holding
company.
(G) To purchase or otherwise acquire for any estate or interest, any property,
assets, or any concessions, licences, grants, patents, trade marks or
other exclusive or non-exclusive rights of any kind which may appear to be
necessary or convenient for any business of the Company, and to develop
and turn to account and deal with the same in such manner as may be
thought expedient, and to make experiments and tests and to carry on all
kinds of research work.
(H) To raise or borrow money and to receive deposits in such manner as the
board of directors thinks fit.
(I) To draw, make, accept, endorse, discount, negotiate, execute and issue
promissory notes, bills of exchange, bills of lading, warrants, debentures
and other negotiable and transferable instruments.
(J) To mortgage, charge, pledge or give liens or other security over the whole
or any part of the Company's undertaking, property and assets (whether
present or future), including its uncalled capital, for its own
obligations or the obligations of any company which is a direct or
indirect subsidiary or affiliate of Huntsman ICI Chemicals LLC on such
terms and conditions as the board of such terms and conditions as the
board of directors thinks fit.
(K) To draw, make, accept, endorse, discount, negotiate, execute, and issue,
and to buy, sell and deal in bills of exchange, promissory notes, and
other negotiable or transferable instruments.
(L) To amalgsmate or enter into partnership or any joint purse or
profit-sharing arrangement with, and to co-operate in any may with or
assist or subsidise any company, firm or person.
(M) To promote or concur in the promotion of any company, the promotion of
which shall be considered desirable.
(N) To lend or advance money and to give credit and to enter (whether
gratuitously or otherwise) into guarantees or indeminities of all kinds,
and whether secured or unsecured, whether in respect of its own
obligations or those of Huntsman ICI Chemicals LLC or those of any company
which is a direct or indirect subsidiary or affiliate of Huntsman ICI
Chemicals LLC and on such terms and conditions as the board of directors
thinks fit.
(O) To the extent permitted by law, to give financial assistance for the
purpose of the acquisition of shares of the Company or any company which
is a holding company thereof or for the purpose of reducting or
discharging a liability incurred for the purpose of such an acquisition
and to give such assistance by means of gift, loan, guarantee, indemnity,
the provision of security or otherwise.
(P) To sell, lease, grant licences, easements and other rights over, and in
any other manner deal with or dispose of, the undertaking, property,
assets, rights and effects of the Company or any part thereof for such
consideration as may be thought fit, and in particular for stocks, shares
or securities of any other company, whether fully or partly paid up.
(Q) To undertake and transact all kinds of trust and agency business.
(R) To establish competitions, and to offer and grant prizes, rewards and
premiums, and to provide for and furnish or secure to any Members or
customers of the Company, or to the holders of any coupons or tickets
issued by or for the Company, any chanels, conveniences, advantages,
benefits or special privileges which may seem expedient and either
gratuitously or otherwise and generally to adopt such means of making
known, the products of the Company and pushing the sale thereof as may
seem expedient.
(S) To take all necessary or proper steps in Parliament or with the
authorities, national, local municipal or otherwise, of any place in which
the Company may have interests, and to carry on any negotiations or
operations for the purpose of directly or indirectly carrying out the
objects of the Company of effecting any modification in the constitution
of the Company or furthering the interest of its Members, and to oppose
any such steps taken by any other company, firm or person which may be
considered likely directly or indirectly to prejudice the interests of the
Company or its Members.
(T) To procure the registration or incorporation of the Company in or under
the laws of any place outside England.
(U) To subscribe or guarantee money for any notional, chartiable, benevolent,
public, general or useful object or for any exhibition, or for any purpose
which may be considered likely, directly or indirectly, to further the
objects of the Company or the interest of its Members, employee or their
dependents.
(V) To grant pensions or gratuities to any employees or ex-employees of the
Company or of any company in which the Company may be interested or their
predecessors in business, or the relations, connections or dependants of
any such persons, and to establish or support associations, institutions,
clubs, funds and trusts, or to make donations and gifts which may be
considered calculated to benefit any such persons or otherwise advance the
interests of the Company or of its Members, and to establish and
contribute to any scheme for the purchase by trustees of shares or
securities of the Company or any such other company as aforesaid to be
held for the benefit of the Company's employees and to lend money to the
Company's employees to enable them to purchase houses or shares or
securities of the Company and to formulate and carry into effect any
scheme for sharing the profits of the Company with its employees or any of
them.
(W) To distribute among the Members of the Company in specie any property of
the Company.
(X) To do all or any of the things and matters aforesaid in any part of the
world, and either as principals, agents, contractors, trustees or
otherwise, and by or through trustees, agents or otherwise, and either
alone or in conjunction with others.
(Y) To do all such other things as may be considered to be incidental or
conductive to the above objects or any of them.
4. And it is hereby declared that the objects of the Company as specified in
each of the foregoing paragraphs of this clauses (except only if and so far as
otherwise expressly provided in any paragraph) shall be separate and distinct
objects of the Company and shall not be in anywise limited by reference to any
other paragraph or the order in which the same occur or the name of the Company.
However, with the exception of paragraphs (P), (J) and (N), the Company shall
only the permitted to undertake any of the objects and matters referred to in
clause 3 to the extent the same is incidental to the attainment of all or any of
the objects stated in paragraphs (F), (J) and (N).
WE, the several persons whose names and addresses are subscribed, are desirous
of being formed into a Company, in pursuance of this Memorandum of Association,
and we respectively agree to take the number of shares in the capital of the
Company set opposite our respective names.
- --------------------------------------------------------------------------------
NAMES, ADDRESSES AND DESCRIPTIONS OF SUBSCRIBERS Number of
Shares taken by
each Subscriber
- --------------------------------------------------------------------------------
FRANK A CREW, 95 Gresham Street, London EC2 One
Incorporated Accountant
F MORRELL GILDER, 95 Gresham Street, London EC2 One
Chartered Secretary
- --------------------------------------------------------------------------------
Dated the 21st day of July, 1930
- --------------------------------------------------------------------------------
Witness to the above Signatures:
H HILLIARD ATTERIDGE
2 Bond Court, Walbrook, London EC4
Solicitor
TIOXIDE GROUP
WRITTEN MEMBERS' RESOLUTION
In accordance with section 381A of the Companies Act 1985. WE, being all the
members of the Company who at the date of these resolutions would be entitled to
attend and vote at a general meeting of the Company. AGREE that the following
resolution shall have effect as it passed by the Company in general meeting and
accordingly WE RESOLVE:
SPECIAL RESOLUTION
THAT the final seven articles of the Company's articles of association, which
are currently incorrectly numbered as being articles 16-32, be renumbered as
articles 23-29 and the amended articles of association annexed to this
resolution be adopted as the new articles of association of the Company.
/s Samuel D. Scruggs /s/ GI Services Limited
- -------------------------------- --------------------------------
Duly authorised to sign Duly authorised to sign
for and on behalf of for and on behalf of
Huntsman ICI Chemical LLC GI Services Limited
Date: 12th August 1999 Date: 10th August 1999
Note
A copy of this resolution was sent to the Company's auditors, Deloitte & Touche
on 9th August 1999 pursuant to (s) 381B Companies Act 1985.
The Companies Act 1985
Written Resolution of the Shareholders
of
TIOXIDE GROUP
We being all the members of the Company entitled attend and vote at a general
meeting of the Company hereby resolve pursuant to section 381A of the Companies
Act 1995 that the following resolutions of the Company shall be as valid and
effectual as if passed as ordinary resolutions at a general meeting of the
Company duly convened and held:
Resolutions
1. That the authorised share capital of the Company be increased from
(Pounds)449,476,900 to 478,476,900 pounds ((Pounds)478,476,900) by the
creation of 29,000,000 additional Preference Shares of one pound
(Pound1) each.
2. That, pursuant to section 80 of the Companies Act 1985, the directors be
and they are hereby authorised generally and unconditionally to allot
relevant securities (as defined in section 80 of the Companies Act 1985)
up to an aggregate nominal amount of 29,000,000 pounds
((Pounds)29,000,000 provided that this authority, unless renewed, shall
expire on the date five years from the date on which this resolution is
passed save that the Company may before such expiry make an offer or
agreement which would or might require relevant securities to be
allotted after such expiry and the directors may allot the relevant
securities in pursuance of such offer or agreement as if the authority
conferred hereby had not expired.
/s/ L. Russell Healy /s/ L. Russell Healy
- ---------------------------- ----------------------------
Huntsman ICI Chemicals LLC Huntsman Texas Holdings LLC
Date: 28th March, 2001 Date: 28th March, 2001
Note: A copy of this resolution was sent to the auditors of the Company on 30th
March, 2001 in accordance with section 381B of the Companies Act 1985
Number 249759
The Companies Act 1988
Written Resolution of the Shareholders
of
TIOXIDE GROUP
We being all the members of the Company entitled to attend and vote at a general
meeting of the Company hereby resolve pursuant to section 381A of the Companies
Act 1985 that the following resolutions of the Company shall be as valid and
effectual as if passed as ordinary resolutions at a general meeting of the
Company duly convened and held:
Resolutions
1. That the authorised share capital of the Company be increased from
(Pound)423,607,100 to 449,477,900 pounds ((Pound)449,447,900) by the
creation of 25,870,800 additional Preference Shares of one pound (Pound1)
each.
2. That, pursuant to section 80 of the Companies Act 1985, the directors be
and they are hereby authorised generally and unconditionally to allot
relevant securities (as defined in section 80 of the Companies Act 1985)
up to an aggregate nominal amount of 25,870,800 pounds (Pound25,870,800)
provided that this authority, unless renewed, shall expire on the date
five years from the date on which this resolution is passed save that the
Company may before such expiry make an offer or agreement which would or
might require relevant securities to be allotted after such expiry and the
directors may allot the relevant securities in pursuance of such offer or
agreement as if the authority conferred hereby had not expired.
/s/ L. Russell Healy /s/ L. Russell Healy
- ------------------------------------ -------------------------------------
Huntsman ICI Chemicals LLC Huntsman Texas Holdings LLC
Date: Dec. 28, 2000 Date: Dec. 28, 2000
Number 249759
THE COMPANIES ACT 1985 (AS AMENDED)
-----------------------------------
WRITTEN RESOLUTIONS
OF
TIOXIDE GROUP
- --------------------------------------------------------------------------------
By written resolutions of the above-named Company, the following resolutions
were passed as ordinary resolutions on 29, August 2000:
RESOLUTIONS
1. That the authorised share capital of the Company be increased from
(Pound)415,495,900 to 423,607,100 pounds ((Pound)423,607,100) by the
creation of 8,111,200 additional Preference Shares of one pound (Pound1)
each.
2. That, pursuant to section 80 of the Companies Act 1985, the directors be
and they are hereby authorised generally and unconditionally to allot
relevant securities (as defined in section 80 of the Companies Act 1985)
up to an aggregate nominal amount of 8,111,200 pounds ((Pound)8,111,200)
provided that this authority, unless renewed, shall expire on the date
five years from the date on which this resolution is passed save that the
Company may before such expiry make an offer or agreement which would or
might require relevant securities to be allotted after such expiry and the
directors may allot the relevant securities in pursuance of such offer or
agreement as if the authority conferred hereby had not expired.
/s/ Company Secretary
---------------------------
Company Secretary
THE COMPANIES ACT 1985 (AS AMENDED)
-----------------------------------
WRITTEN RESOLUTION
------------------
OF
--
TIOXIDE GROUP
-------------
By written resolution of the above-named Company, the following resolutions were
passed as ordinary resolutions on 25th February, 2000:-
RESOLUTIONS
1. That the authorised share capital of the Company be increased from
(Pound)413,000,000 to 415,495,900 pounds ((Pound)415,495,900) by the
creation of 2,495,900 additional Preference Shares of one pound ((Pound)1)
each.
2. That, pursuant to Section 80 of the Companies Act 1985, the directors be and
they are hereby authorised generally and unconditionally to allot relevant
securities (as defined in Section 80 of the Companies Act 1985) up to an
aggregate nominal amount of 2,495,900 pounds ((Pound)2,495,900) provided
that this authority, unless renewed, shall expire on the date five years
from the date on which this resolution is passed save that the Company may
before such expiry make an offer or agreement which would or might require
relevant securities to be allotted after such expiry and the directors may
allot the relevant securities in pursuance of such offer or agreement as if
the authority conferred hereby had not expired.
/s/ Company Secretary
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Company Secretary
The Companies Act 1985
Written Resolution
of
TIOXIDE GROUP
By a written resolution of the above-named Company, the following resolutions
were passed as ordinary resolutions on 20th December, 1999.
1. That the authorised share capital of the Company be increased from
(Pound)373,000,000 to 413,000,000 pounds ((Pound)413,000,000) by the
creation of 40,000,000 additional Preference Shares.
2. That, pursuant to section 80 of the Companies Act 1985, the directors be and
they are hereby authorised generally and conditionally to allot relevant
securities (as defined in section 80 of the Companies Act 1985) up to an
aggregate nominal amount of 40,000,000 pounds (40,000,000) provided that
this authority, unless renewed, shall expire on the date five years from the
date on which this resolution is passed save that the Company may before
such expiry make an offer or agreement which would or might require relevant
securities to be allotted after such expiry and the directors may allot the
relevant securities in pursuance of such offer or agreement as if the
authority conferred hereby had not expired.
/s/ Company Secretary
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Company Secretary
ANNEX C
TIOXIDE GROUP
Registered Number 249759
(the "Company")
MINUTES OF A MEETING OF THE BOARD OF DIRECTORS
Held by telephone in accordance with Article 26(c) of the Articles of
Association of the Company on 13th March 2001 at 10:00 am
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Present: Duncan Emerson (director)
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Kevin Ninow (director)
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In attendance: Mr. Michael Maughan, Company Secretary
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1. Duncan Emerson was elected as Chairman of the meeting. The Chairman noted
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that, each of the directors of the Company having received due notice of the
meeting, a quorum was present, and the meeting proceeded to business.
2. Each of the directors disclosed his interests in the business of the meeting
for the purposes of section 317 of the Companies Act 1985 and the Articles of
Association of the Company.
3. The Chairman explained that the principal purpose of the meeting was to
consider, and if thought fit, to approve the Company's participation in the
following transaction:
a. The Managers of Huntsman International LLC ("International") are
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proposing to raise capital through the issuance and sale of the
International's (Pound)200,000,000 10 1/2% Senior Subordinated Notes due
2009 (the "Notes") in a private offering (with registration rights for
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the Holders) (the "Offering") to non-U.S. persons in compliance with
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Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), to qualified institutional buyers meeting the
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criteria contained in Rule 144A under the Securities Act, and to a
limited number of institutional "accredited investors", as defined in
Rule 501 under the Securities Act, or other exemptions under the
Securities Act, and to enter into a registration rights agreement to
register notes substantially identical to the Notes under the Securities
Act and to exchange the Notes for such registered Notes.
b. The Notes will be issued pursuant to an indenture between the Company,
the guarantors named therein and The Bank of New York, as trustee (the
"Indenture").
c. International in proposing to use the net proceeds from the Offering to
fund the Company's planned purchase of the European surfactants
business of Albright & Wilson, a subsidiary of Rhodia, S.A., to finance
other acquisitions or to reduce borrowings under its senior secured
credit facilities.
4. After due and careful consideration, it was RESOLVED as follows.
a. THAT it be advisable and in the best interests of the Company to grant
and deliver an unsecured senior subordinated unconditional guarantee
(the "Guarantee") of the obligations of International under the Notes
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in accordance with the terms of the Indenture and the purchase
agreement (the "Purchase Agreement"), to be entered into by and among
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International, the Guarantors named therein (including the Company)
and the initial purchasers name therein (the "Initial Purchasers");
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that the form, terms and provisions of the Purchase Agreement,
substantially in the form of the draft thereof dated February 26, 2001,
and the transactions contemplated thereby, be, and they thereby are,
approved and adopted in all respects; and that the directors are, and
each of them individually hereby is, authorized and directed, in the
name and on behalf of the Company, to finalize, execute and deliver
the Purchase Agreement, substantially in the form of the draft thereof
dated February 26, 2001, with such changes thereto as the director
executing the same may deem necessary or desirable in connection
therewith; and
b. THAT any director be, and each of them individually hereby is,
authorised, in the name and on behalf of the Company, to execute, grant
and deliver, in connection with the Offering, pursuant to the terms as
set forth in the Indenture to be entered into, the Guarantee pursuant
to which the Company will unconditionally guarantee on a senior
subordinated basis the obligations of its parent, international, under
the Notes to the holders of the Notes, and to perform all of the
agreements and obligations of the Company under such Guarantee and to
consummate the transactions contemplated thereby, and that such
directors be, and each of them individually hereby is, authorized to
execute and deliver such other agreements and documents, and to take
such other actions as the director executing the same may deem
necessary or desirable in connection therewith; and
c. THAT the form, terms and provisions of the Confidential Preliminary
Offering Memorandum dated February 23, 2001, have been provided to
the Directors of the Company (the "Preliminary Offering Memorandum")
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in connection with the Offering and the distribution thereof by the
Initial Purchasers be, and they hereby are, ratified, approved and
adopted in all respects; and that the directors be, and each of them
individually hereby is, authorized and directed, in the name and on
behalf of the Company, to make, and to assist International in making,
such additions to and changes in such Preliminary Offering Memorandum
as are necessary, appropriate or desirable for the use thereof in
connection with the Offering and to assist International in the
preparation of a Confidential Final Offering Memorandum and such
amendments and supplements thereto (collectively, the "Final Offering
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Memorandum"), in substantially the form of the Preliminary Offering
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Memorandum, with such additions thereto or changes therein as such
directors may deem necessary, appropriate or desirable for the use
thereof in connection with the Offering, and that the Preliminary
Offering Memorandum and such Final Offering Memorandum in the forms
approved by any of the directors, and the use thereof in connection
with the Offering be, and they hereby are, approved in all respects;
and
d. THAT the directors be, and each of them individually hereby is,
authorized and directed, in the name and on behalf of the Company, to
prepare, execute and deliver a registration rights agreement (the
"Registration Rights Agreement") to be entered into by and among
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International, the Guarantors named therein (including the Company) and
the Initial Purchasers, and that such Registration Rights Agreement,
in such form and having such terms and conditions as any of the
directors shall approve by the execution thereof, and the performance
by the Company of its obligations thereunder be, and they hereby are,
approved in all respects; and
e. THAT the directors be, and each of them individually hereby is,
authorized and directed, in the name and on behalf of the Company, to
register the Guarantee of the senior subordinated notes to be issued
by the Company in an exchange offer (the "Exchange Offer") with
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substantially identical terms to the Notes (the "Exchange Notes")
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pursuant to a registration statement to be filed under the Securities
Act, upon the terms and conditions as set forth in the Registration
Rights Agreement; and
f. THAT in connection with any Exchange Offer, the directors be, and each
of them individually hereby is, authorized and directed, in the name
and on behalf of the Company, (i) to prepare, execute and file or cause
to be prepared, executed and filed all reports, schedules, statements,
consents, documents and information, if any, required to be filed by
the Company pursuant to the Securities Exchange Act of 1934, as
amended, (ii) to prepare, execute and file or cause to be prepared,
executed and filed all other reports, schedules, statements, consents,
documents and information required to be prepared, executed and filed
by the Company pursuant to
federal or state law, as such director deems necessary or
appropriate, and (iii) to take all such other actions as he or they,
upon the advice of counsel, deem necessary or appropriate to comply
with the applicable laws of any jurisdiction (domestic or foreign)
and with any requirements of any court, governmental, regulatory or
administrative agency or instrumentality; and
g. THAT in connection with the registration of the Guarantee of the
Exchange Notes or the filing of the shelf registration statement with
respect to the release of the Notes and/or the Exchange Notes under
the Securities Act, the directors be, and each of them individually
hereby is, authorized and directed, in the name and on behalf of the
Company, to prepare and file with the Securities and Exchange
Commission (the "SEC") a registration statement, or to assist
International in the preparation of a registration statement and in
filing it with the SEC, on an appropriate form under the Securities
Act and such exhibits, amendments and supplements relating thereto
including post-effective amendments (collectively, the "Exchange
Offer Registration Statement"), in each case, including the
prospectuses contained therein, and all other materials as such
director deems necessary or appropriate in order to effect the
registration of the Guarantee of the Notes and/or Exchange Notes
under the Securities Act; and that the Exchange Offer Registration
Statement or other materials, as prepared by such directors, any one
of them noting alone, be, and hereby are, approved and adopted in all
respects; and
h. THAT, in connection with the Guarantee the Officers be and each of
them individually hereby is, authorized, in the name and on behalf of
the Company, to take any and all such actions as such Officer, upon
the advice of counsel, deems necessary or appropriate to qualify or
to assist the Company in the qualification of, the Indenture under
the Trust Indenture Act of 1939, as amended; and
i. THAT each of the directors who may be required to execute the
Exchange Offer Registration Statement (whether on behalf of the
Company or as an officer thereof or by arresting the seal of the
Company or otherwise) be, and each of them individually hereby is,
authorized to execute and deliver a power of attorney appointing one
or more directors of the Company, and each of them, as their lawful
attorneys and agents, to execute in such director's name, place and
stand (in any capacity) the Exchange Offer Registration Statement and
any and all amendments and supplements relating thereto, including
post-effective amendments, and other instruments necessary or
appropriate in connection therewith, to arrest the seal of the
Company thereto, and to file the same with the SEC, granting to said
attorneys and agents, and each of them, the full power of authority
to do and perform in name and on behalf of each of said directors
every act whatsoever which may be necessary or desirable as set forth
in such Exchange Offer Registration Statement, and to take or cause
to be
taken any and all such further actions in connection therewith in the
name and on behalf of the Company as they, in their sole discretion
deem necessary or appropriate; and
j. THAT any or all of the directors may be appointed as the Company's
agent for service in connection with the the filing with the SEC of
the Exchange Offer Registration Statement and any and all amendments
and supplements there to with such powers conferred upon such agent
by the Securities Act and the rules and regulations promulgated
thereunder; and
k. THAT the directors be, and each of the individually hereby is,
authorized and directed, in the name and on behalf of the Company, to
take any and all such actions as they deem necessary, appropriate or
desirable to effect the registration or qualification (or exemption
therefrom) of all or such part of the Guarantee of the Notes and the
Exchange Notes, as such directors may deem appropriate for the issue,
offer, sale or trade under the Blue Sky or securities laws of any of
the states of the United States of America or foreign jurisdictions,
including without limitation, to prepare, execute, deliver, file or
cause to be published any applications, reports, concepts to services
or process, issuer's covenants, appointments of attorneys to receive
service of process and other documents and instruments which may be
required under such laws, and to take any and all such further
actions as they deem necessary or appropriate in order to maintain
any registration or qualification for as long as they deem necessary
or as required by law or by the Initial Purchasers of such
securities; that the execution by any of such directors of any such
documents or instrument or the doing by them of any act in connection
with the foregoing shall conclusively establish their authority
therefor from the Company and the approval and ratification by the
Company of the documents and instruments so executed and the actions
so taken; and
l. THAT if any state or foreign securities administrator shall require
certain resolutions to be adopted by the directors to evidence the
authority conferred upon any such state or foreign securities
administration by these resolutions, any director of the Company
be, and each of them individually hereby is, authorized to prepare
and certify the appropriate form of resolutions, so required, and
such resolutions shall thereupon be incorporated and adopted by
reference, to the same extent as if presented to and adopted by the
directors, and that the Secretary of any Assistant Secretary is
directed to file a copy of any such resolutions with this consent;
and
m. THAT the Directors be, and each of them individually hereby is,
authorized and directed, in the name and on behalf of the Company, to
prepare (or to assist in the preparation of), execute and deliver to
the Trustee the Indenture (which shall include forms of the Notes,
the Exchange Notes and Guarantees), having the terms described in the
Final
Offering Memorandum is substantially the form to be negotiated by
those Directors, to be entered into by and among International, the
Guarantors named therein (including the Company) and the Trustee,
relating to the Notes, the Exchange Notes and the Guarantee thereof,
and such Indenture, in such form and having such terms and conditions
as any of the Directors shall approve by the execution thereof, and
the performance by the Company of its obligations thereunder be, and
they hereby are, approved in all respects; and
n. THAT the Directors be, and each of them individually hereby is,
authorized and directed, in the name and on behalf of the Company, to
agree and execute such amendments, waivers or consents under any
agreements or documents, including, without limitation, those
referred to herein, as such Director(s) may deem necessary or
appropriate, which amendments, waivers or consents to such agreements
or documents may provide for consent payments, fees or other amounts
payable or other modifications or relief under such agreements or
documents, the purpose of such amendments, waivers or consents being
to facilitate consummation of the transactions contemplated by the
foregoing resolutions or otherwise; in the forms negotiated by such
Director or Directors; and
o. THAT the Directors are severally authorized, empowered and directed,
for and on behalf of the Company, to do, and to cause any and all of
the Company's counsel and advisors to do any and all acts, deeds and
things, and to sign, seal, execute, acknowledge, file and record and
deliver any and all agreements, documents, instruments, notices,
certificates or undertakings which may be or may become necessary,
desirable or appropriate to effectuate the purposes of the foregoing
resolutions, all as deemed appropriate by such Director in the
futherance of the purposes and intents of the foregoing resolutions;
and
p. THAT the authority granted to the Directors under the foregoing
resolutions shall be deemed to include, in the case of each such
resolution, the authority to perform such further acts, deeds and
things as may be necessary, convenient or appropriate, in the good
faith judgment of such Director to carry out the transactions
contemplated thereby and the purposes and intents of the foregoing
resolutions, and all acts, deeds and things previously performed by
them, counsel or other advisors, for the Company prior to the date
of these resolutions that are within their authority and are hereby
approved, ratified and confirmed in all respects as the authorized
acts and deeds of the Company; and
q. THAT the Directors be, and each of them hereby is, authorized and
empowered in the name and on behalf of the Company to take, or cause
to be taken, any and all such further actions, to execute and deliver
or cause to be executed and delivered all such other deeds,
documents, instruments
and agreements, and to make such filings, in the name and on behalf of
the Company, to incur and pay all such fees and expenses and to engage in
such acts as they shall in their judgement determine to be necessary,
desirable or advisable to carry out fully the intent and purposes of the
foregoing resolutions and the execution by them of any such deed,
document, instrument or agreement of the payment of any such fees and
expenses or the doing by them of any act in connection with the foregoing
matters shall conclusively establish their authority therefor and the
approval of the documents, instruments or agreements so executed, the
expenses so paid, the filings so made and the actions so taken; and
r. THAt all actions heretofore taken by any Director of the Company in
connection with any matter referred or contemplated in any of the
foregoing resolutions are hereby approved, ratified and confirmed in all
respects.
5. There being no further business, the Chairman declared the meeting closed.
Signed: /s/ Mr. Michael Maughan
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Mr. Michael Maughan
Company Secretary
ANNEX D
GUARANTEE
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For value received, the undersigned hereby unconditionally guarantees,
on a senior subordinated basis, as principal obligor and not only as a surety,
to each Holder of a Note the cash payments in the currency in which such Note is
denominated of principal of, premium, if any, and interest on this Note in the
amounts and at the times when due and interest on the overdue principal,
premium, if any, and interest on this Note, in the amounts and at the times when
due and interest on the overdue principal, premiun, if any, and interest, if
any,of this Note,if lawful and the payment or performance of all other
obligations of the Company under the Indenture (as defined below) or the Notes,
to the Holder of this Note and the Trustee, all in accordance with and subject
to the terms and limitations of this Note, Article Eleven of the Indenture and
this Guarantee. This Guarantee will become effective in accordance with Article
Eleven of Indenture and its terms shall be evidenced therein. The validity and
enforceability of any Guarantee shall not be affected by the fact that it is not
affixed to any particular Note.
Capitalized terms used buy not defined herein shall have the meanings
ascribed to them in the Indenture dated as of March 13, 2001, among HUNTSMAN
INTERNATIONAL LLC as issuer (the "Company"), each of the Guarantors named
therein and The Bank of New York, as trustee (the "Trustee"), as amended or
supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article Eleven of the indenture and reference is hereby made to the Indenture
for the precise term of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW. The undersigned Guarantor hereby agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
IN WITNESS WHEREOF, each Guarantor has caused its Guarantee to
be duly executed.
Date: May 1, 2001
GUARANTORS:
EUROFUELS LLC
By: /s/ Sean Douglas
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Name: Sean Douglas
Title: Vice President
EUROSTAR INDUSTRIES LLC
By: /s/ Sean Douglas
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Name: Sean Douglas
Title: Vice President
HUNTSMAN EA HOLDINGS LLC
By: /s/ Sean Douglas
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Name: Sean Douglas
Title: Vice President
HUNTSMAN ETHYLONEAMINES LTD.
By: /s/ Sean Douglas
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Name: Sean Douglas
Title: Vice President
HUNTSMAN INTERNATIONAL FINANCIAL LLC
By: /s/ J. Kimo Esplin
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Name: J. Kimo Esplin
Title: Executive Vice President and CFO
HUNTSMAN INTERNATIONAL FUELS, L.P.,
by its following General Partner: Eurofuels LLC
By: /s/ Sean Douglas
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Name: Sean Douglas
Title: Vice President
HUNTSMAN PROPYLENE OXIDE HOLDINGS LLC
By: /s/ Sean Douglas
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Name: Sean Douglas
Title: Vice President
HUNTSMAN PROPYLENE OXIDE LTD.
by its following General Partner:
Huntsman Propylene Oxide Holdings LLC
By: /s/ Sean Douglas
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Name: Sean Douglas
Title: Vice President
HUNTSMAN TEXAS HOLDINGS LLC
By: /s/ Sean Douglas
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Name: Sean Douglas
Title: Vice President
TIOXIDE GROUP
By: /s/ J. Kimo Esplin
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Name: J. Kimo Esplin
Title: Director
Executed as a Deed by, for and TIOXIDE AMERICAS INC.
on behalf of in the presence of
/s/ Mykel Mason By: /s/ Samuel D. Scruggs
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Witness Name: Samuel D. Scruggs
Title: Assistant Secretary