LIMITED LIABILITY COMPANY AGREEMENT OF RTK ACQUISITION SUB, LLC A Delaware Limited Liability Company
This LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) of RTK Acquisition
Sub, LLC (the “Company”) is effective as of May 27, 2009.
1. Formation of Limited Liability Company. Rentech, Inc., (the
“Member”), hereby forms the Company as a limited liability company
pursuant to the provisions of the Delaware Limited Liability Company Act,
6 Del. C §18-101, et seq., as it may be amended or succeeded from time to
time (the “Act”). The rights and obligations of the Member and the
administration of the Company shall be governed by the Agreement and the
Act. The Agreement shall be considered the “Limited Liability Company
Agreement” of the Company. To the extent this Agreement is inconsistent
in any respect with the Act, the Agreement shall control.
2. Member. Rentech, Inc. is the sole and managing member of the
Company.
3. Purpose. The Company may engage in any and all businesses or
activities in which a limited liability company may be engaged under
applicable law (including, without limitation, the Act).
4. Name. The name of the Company shall be “RTK Acquisition Sub,
LLC”.
5. Registered Agent and Principal Office. The registered office and
registered agent of the Company in the State of Delaware shall be as the
Member may designate from time to time. The Company may have such other
offices as the Member may designate from time to time. The mailing
address of the Company shall be 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx
Xxxxxxx, XX 00000.
6. Term of Company. The Company commenced on the date the
Certificate of Formation (the “Certificate”) first was properly filed with
the Secretary of State of the State of Delaware and shall exist in
perpetuity or until its business and affairs are earlier wound up
following proper dissolution.
7. Management of Company. All decisions relating to the business,
affairs, and properties of the Company shall be made by the Member. The
Member may appoint directors and/or
officers of the Company using any titles, and may delegate all or
some decision-making duties and responsibilities to such persons. Any
such directors and/or officers shall serve at the pleasure of the Member.
To the extent delegated by the Member, directors and/or officers shall
have the authority to act on behalf of, bind, and execute and deliver
documents in the name and on behalf of the Company. In addition, unless
otherwise determined by the Member, any officer(s) so appointed shall have
such
authority and responsibility as is generally attributable to the holders of such offices in
corporations incorporated under the laws of the state of Delaware. No delegation of
authority hereunder shall cause the Member to cease to be a Member.
8. Other Activities. The Member may engage or invest in, and devote
its time to, any other business venture or activity of any nature and
description (independently or with others), whether or not such other
activity may be deemed or construed to be in competition with the Company.
The Company shall not have any right by virtue of this Agreement or the
relationship created hereby in or to such other venture or activity of the
Member (or to the income or proceeds derived therefrom), and the pursuit
thereof, even if competitive with the business of the Company, shall not
be deemed wrongful or improper.
9. Standards of Conduct. Whenever the Member is required or
permitted to make a decision, take or approve an action, or omit to do any
of the foregoing, then the Member shall be entitled to consider only such
interests and factors, including its own, as it desires, and shall have no
duty or obligation to consider any other interests or factors whatsoever.
To the extent that the Member has, at law or in equity, duties (including,
without limitation, fiduciary duties) to the Company or other person bound
by the terms of this Agreement, the Member acting in accordance with this
Agreement shall not be liable to the Company or any such other person for
its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties
of the Member otherwise existing at law or in equity, replace such other
duties to the greatest extent permitted under applicable law.
10. Limited Liability. Except as otherwise required by any
non-waivable provision of the Act or other applicable law, the Member
shall not be personally liable in any manner whatsoever for any debt,
liability, or other obligation of the Company, whether such debt,
liability, or other obligation arises in contract, tort, or otherwise.
11. Contributions. The Member has contributed capital to the Company
in the amounts reflected on the books and records of the Company. The
Member may not be required to contribute any additional capital without
such Member’s consent.
12. Distributions. Each distribution of cash or other property by
the Company shall be made 100% to the Member. Cash shall not be retained
at the Company level any longer than administratively or legally
necessary. Each item of income, gain,
loss, deduction, credit, and other tax items of the Company shall be
allocated 100% to the Member.
13. Tax Treatment. It is intended that, for federal tax purposes,
the Company be disregarded as an entity separate from the Member.
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14. Indemnification. The Company shall indemnify and hold harmless the Member
to the full extent permitted by law from and against any and all losses, claims,
demands, costs, damages, liabilities, expenses of any nature (including attorneys’
fees and disbursements), judgments, fines, settlements, and other amounts
(collectively, “Costs”) arising from any and all claims, demands, actions, suits,
or proceedings (civil, criminal, administrative, or investigative) (collectively,
Actions”) in which the Member may be involved, or threatened to be involved as a
party or otherwise, relating to the performance or nonperformance of any act
concerning the activities of the Company. In addition, to the extent permitted by
law, the Member may cause the Company to indemnify and hold harmless any managers
and/or officers from and against any and all Costs arising from any or all actions
arising in connection with the business of the Company or by virtue of such
person’s capacity as an agent of the Company.
Notwithstanding the foregoing, any and all indemnification obligations of the Company shall be
satisfied only from the assets of the Company, and the Member shall have no liability or
responsibility therefor.
15. Dissolution and Winding Up. The Company shall dissolve and its business
and affairs shall be wound up pursuant to a written instrument executed by the
Member. In such event, after satisfying creditors, all remaining assets shall be
distributed to the Member.
16. Amendments. This Agreement may be amended or modified from time to time
only by a written instrument executed by the Member.
17. Governing Law. The validity and enforceability of this Agreement shall be
governed by and construed in accordance with the laws of Delaware without regard to
other principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of
the above stated date.
MEMBER:
RENTECH, INC.
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Secretary | |||
(RTK Acquisition Sub, LLC Operating Agreement)