EXHIBIT 3.5
OPERATING AGREEMENT
OF
MACQUARIE INFRASTRUCTURE ASSETS LLC
Dated as of April 13, 2004
TABLE OF CONTENTS
Page
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ARTICLE 1 THE COMPANY............................................................................................ 1
Section 1.1 Formation................................................................................... 1
Section 1.2 Name........................................................................................ 1
Section 1.3 Purpose; Powers............................................................................. 1
Section 1.4 Principal Place of Business................................................................. 1
Section 1.5 Term........................................................................................ 2
Section 1.6 Filings; Agent for Service of Process....................................................... 2
Section 1.7 Title to Property........................................................................... 2
Section 1.8 Payments of Individual Obligations.......................................................... 2
Section 1.9 Definitions................................................................................. 3
ARTICLE 2 THE TRUST.............................................................................................. 11
Section 2.1 Trust to Be Sole Member..................................................................... 11
Section 2.2 Trust Stock to Represent LLC Interests...................................................... 11
Section 2.3 Circumstances Under Which Trust Stock Will Be Exchanged for LLC Interests................... 11
Section 2.4 Right to Acquire Outstanding LLC Interests.................................................. 12
ARTICLE 3 ADMISSION OF MEMBERS................................................................................... 13
Section 3.1 LLC Interest Certificates; Admission of Additional Members.................................. 13
Section 3.2 Authorized Stock............................................................................ 14
Section 3.3 Issuance of Additional LLC Interests........................................................ 14
Section 3.4 Repurchase of LLC Interests by the Company.................................................. 14
ARTICLE 4 ALLOCATIONS............................................................................................ 14
Section 4.1 Profits..................................................................................... 14
Section 4.2 Losses...................................................................................... 14
Section 4.3 Special Allocations......................................................................... 14
Section 4.4 Curative Allocations........................................................................ 16
Section 4.5 Loss Limitation............................................................................. 17
Section 4.6 Other Allocation Rules...................................................................... 17
Section 4.7 Tax Allocations: Code Section 704(c)....................................................... 17
ARTICLE 5 DIVIDEND DISTRIBUTIONS................................................................................. 18
Section 5.1 Net Cash Flow............................................................................... 18
Section 5.2 Amounts Withheld............................................................................ 18
Section 5.3 Limitations on Distributions................................................................ 18
ARTICLE 6 BOARD OF DIRECTORS..................................................................................... 18
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Section 6.1 Initial Board............................................................................... 18
Section 6.2 General Powers.............................................................................. 19
Section 6.3 Duties of Directors......................................................................... 19
Section 6.4 Number, Tenure and Qualifications........................................................... 19
Section 6.5 Election of Directors....................................................................... 19
Section 6.6 Removal..................................................................................... 19
Section 6.7 Resignations................................................................................ 20
Section 6.8 Vacancies and Newly Created Directorships................................................... 20
Section 6.9 Appointment of or Nomination and Election of Chairman....................................... 20
Section 6.10 Chairman of the Board...................................................................... 20
Section 6.11 Regular Meetings........................................................................... 20
Section 6.12 Special Meetings........................................................................... 21
Section 6.13 Notice for Special Meetings................................................................ 21
Section 6.14 Action Without Meeting..................................................................... 21
Section 6.15 Conference Telephone Meetings.............................................................. 21
Section 6.16 Quorum..................................................................................... 21
Section 6.17 Committees................................................................................. 22
Section 6.18 Committee Members.......................................................................... 24
Section 6.19 Committee Secretary........................................................................ 25
Section 6.20 Compensation............................................................................... 25
Section 6.21 Indemnification and Insurance.............................................................. 25
ARTICLE 7 OFFICERS............................................................................................... 27
Section 7.1 General..................................................................................... 27
Section 7.2 Election and Term of Office................................................................. 28
Section 7.3 Chief Executive Officer..................................................................... 28
Section 7.4 Chief Financial Officer..................................................................... 28
Section 7.5 General Counsel............................................................................. 28
Section 7.6 Secretary................................................................................... 29
Section 7.7 Resignations................................................................................ 29
Section 7.8 Vacancies................................................................................... 29
Section 7.9 Limitation of Liability..................................................................... 29
ARTICLE 8 MANAGEMENT............................................................................................. 29
Section 8.1 Duties of the Manager....................................................................... 29
Section 8.2 Replacement Manager......................................................................... 29
ARTICLE 9 THE MEMBERS............................................................................................ 29
Section 9.1 Rights or Powers............................................................................ 29
Section 9.2 Annual Meetings of Members.................................................................. 30
Section 9.3 Special Meetings of Members................................................................. 30
Section 9.4 Place of Meeting............................................................................ 30
Section 9.5 Notice of Meeting........................................................................... 30
Section 9.6 Quorum and Adjournment...................................................................... 31
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Section 9.7 Proxies..................................................................................... 32
Section 9.8 Notice of Member Business and Nominations................................................... 32
Section 9.9 Procedure for Election of Directors; Voting................................................. 34
Section 9.10 Inspectors of Elections; Opening and Closing the Polls..................................... 34
Section 9.11 Confidential Member Voting................................................................. 35
Section 9.12 Waiver of Notice........................................................................... 35
Section 9.13 Remote Communication....................................................................... 35
Section 9.14 Member Action Without a Meeting............................................................ 35
Section 9.15 Return on Capital Contribution............................................................. 37
Section 9.16 Member Compensation........................................................................ 37
Section 9.17 Member Liability........................................................................... 37
ARTICLE 10 ACCOUNTING, BOOKS AND RECORDS......................................................................... 37
Section 10.1 Accounting, Books and Records.............................................................. 37
Section 10.2 Reports.................................................................................... 38
Section 10.3 Tax Matters................................................................................ 38
ARTICLE 11 AMENDMENTS............................................................................................ 39
Section 11.1 Amendments................................................................................. 39
ARTICLE 12 TRANSFERS............................................................................................. 39
Section 12.1 Distributions and Allocations in Respect of Transferred LLC Interests...................... 39
ARTICLE 13 DISSOLUTION AND WINDING-UP............................................................................ 40
Section 13.1 Dissolution Events......................................................................... 40
Section 13.2 Winding-Up................................................................................. 41
Section 13.3 Compliance with Certain Requirements of Regulations; Deficit Capital Accounts.............. 41
Section 13.4 Deemed Distribution and Recontribution..................................................... 42
Section 13.5 Rights of Members.......................................................................... 42
Section 13.6 Notice of Dissolution/Termination.......................................................... 42
Section 13.7 Allocations During Period of Liquidation................................................... 43
Section 13.8 Character of Liquidating Distributions..................................................... 43
Section 13.9 The Liquidator............................................................................. 43
Section 13.10 Form of Liquidating Distributions......................................................... 43
ARTICLE 14 MISCELLANEOUS......................................................................................... 43
Section 14.1 Notices.................................................................................... 43
Section 14.2 Binding Effect............................................................................. 44
Section 14.3 Construction............................................................................... 44
Section 14.4 Time....................................................................................... 44
Section 14.5 Headings................................................................................... 44
Section 14.6 Severability............................................................................... 44
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Section 14.7 Incorporation by Reference................................................................. 45
Section 14.8 Variation of Terms......................................................................... 45
Section 14.9 Governing Law and Consent to Jurisdiction/Service of Process............................... 45
Section 14.10 Waiver of Jury Trial...................................................................... 45
Section 14.11 Counterpart Execution..................................................................... 45
Section 14.12 Specific Performance...................................................................... 45
Exhibit A -- Specimen LLC Interest Certificate................................................................... A-1
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This OPERATING AGREEMENT is entered into and shall be effective as
of the 13th day of April, 2004, by Macquarie Infrastructure Assets Trust as a
Member pursuant to the provisions of the Act, on the following terms and
conditions:
ARTICLE 1
THE COMPANY
Section 1.1 Formation. The Original Member hereby agrees to form the
Company as a limited liability company under and pursuant to the provisions of
the Act and upon the terms and conditions set forth in this Agreement. The fact
that the Certificate is on file in the office of the Secretary of State of the
State of Delaware shall constitute notice that the Company is a limited
liability company. Simultaneously with the execution of this Agreement and the
formation of the Company, the Original Member shall be admitted as a Member of
the Company. The rights and liabilities of the Members shall be as provided
under the Act, the Certificate and this Agreement. Macquarie Infrastructure
Management (USA) Inc. shall be an "authorized person" within the meaning of the
Act for purposes of filing the Certificate with the office of the Secretary of
State of the State of Delaware.
Section 1.2 Name. The name of the Company shall be Macquarie
Infrastructure Assets LLC and all business of the Company shall be conducted in
such name. The Board of Directors may change the name of the Company upon ten
(10) Business Days' notice to the Members, which name change shall be effective
upon the filing of a certificate of amendment with the Secretary of State of the
State of Delaware.
Section 1.3 Purpose; Powers.
(a) The purposes of the Company are (i) to conduct or promote any
lawful business or purposes granted to a limited liability company of the State
of Delaware as if such limited liability company were a corporation under the
General Corporation Law of the State of Delaware, (ii) to make such additional
investments and engage in such additional activities as the Board of Directors
may approve, and (iii) to engage in any and all activities related or incidental
to the purposes set forth in clauses (i) and (ii); provided, however, that the
Company is not permitted to engage in any activities that would cause it to
become an "investment company" as defined in Section 3(a)(1)(C) of the
Investment Company Act of 1940, as amended, as such section may be amended from
time to time, or any successor provision thereto.
(b) The Company has the power to do any and all acts necessary,
appropriate, proper, advisable, incidental or convenient to or in furtherance of
the purposes of the Company set forth in this Section 1.3 and has, without
limitation, any and all powers that may be exercised on behalf of the Company by
the Board of Directors pursuant to Article 6 hereof.
Section 1.4 Principal Place of Business. The principal executive
offices of the Company shall be at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000. The Board of Directors may change the principal executive offices of
the Company to any other place within or without the State of Delaware upon
written notice to the Members. The address of the Company's registered office in
the State of Delaware is Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle. The name of its
registered agent at such address is The Corporation Trust Company. The Company
may have such offices, either within or without the State of Delaware, as the
Board of Directors may designate or as the business of the Company may from time
to time require.
Section 1.5 Term. The term of the Company shall commence on the date
the Certificate is first filed in the office of the Secretary of State of the
State of Delaware in accordance with the Act and shall continue until the
winding-up and liquidation of the Company and its business is completed
following a Dissolution Event, as provided in Article 13 hereof. Prior to the
time that the Certificate is filed, no Person shall represent to third parties
the existence of the Company or hold itself out as a Member.
Section 1.6 Filings; Agent for Service of Process.
(a) The Board of Directors shall take any and all other actions as
may be reasonably necessary to perfect and maintain the status of the Company as
a limited liability company or similar type of entity under the laws of the
State of Delaware and under the laws of any other jurisdictions in which the
Company engages in business, including the preparation, execution and filing of
such amendments to the Certificate and such other assumed name certificates,
documents, instruments and publications as may be required by law, including,
without limitation, action to reflect:
(i) a change in the Company name; or
(ii) a correction of false or erroneous statements in the
Certificate to accurately represent the agreement among the Members.
(b) The registered agent for service of process on the Company in
the State of Delaware shall be The Corporation Trust Company or any successor as
appointed by the Board of Directors in accordance with the Act.
(c) Upon the dissolution and completion of the winding-up and
liquidation of the Company in accordance with Article 13, the Board of Directors
shall promptly execute and cause to be filed a certificate of cancellation in
accordance with the Act and the laws of any other jurisdictions in which the
Board of Directors deems such filing necessary or advisable.
Section 1.7 Title to Property. All Property owned by the Company
shall be owned by the Company as an entity and no Member shall have any
ownership interest in such Property in its individual name, and each Member's
interest in the Company shall be personal property for all purposes. At all
times after the Effective Date, the Company shall hold title to all of its
Property in the name of the Company and not in the name of any Member.
Section 1.8 Payments of Individual Obligations. The Company's credit
and assets shall be used solely for the benefit of the Company, and no asset of
the Company shall be Transferred or encumbered for, or in payment of, any
individual obligation of any Member.
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Section 1.9 Definitions. Capitalized words and phrases used in this
Agreement have the following meanings:
"ACQUIRER" has the meaning set forth in Section 2.4(a) hereof.
"ACQUISITION EXCHANGE" has the meaning set forth in Section 2.4(a)
hereof.
"ACT" means the Delaware Limited Liability Company Act, 6 Del.
C.Section 18-101, et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to any
Member, the deficit balance, if any, in such Member's Capital Account as of the
end of the relevant Allocation Year, after giving effect to the following
adjustments:
(i) Credit to such Capital Account any amounts which such Member is
deemed to be obligated to restore pursuant to the penultimate sentence in
each of Section 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and
(ii) Debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and
1.704-1(b)(2)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations
and shall be interpreted consistently therewith.
"AFFILIATE" means, with respect to any Person, (i) any Person
directly or indirectly controlling, controlled by or under common control with
such Person, (ii) any officer, director, general partner, member or trustee of
such Person or (iii) any Person who is an officer, director, general partner,
member or trustee of any Person described in clause (i) or (ii) of this
sentence. For purposes of this definition, the terms "controlling," "controlled
by" or "under common control with" shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person or entity, whether through the ownership of voting
securities, by contract or otherwise, or the power to elect at least fifty
percent (50%) of the directors, managers, general partners, or Persons
exercising similar authority with respect to such Person or entity.
"AGREEMENT" or "OPERATING AGREEMENT" means this Operating Agreement
of Macquarie Infrastructure Assets LLC, including all Exhibits and Schedules
attached hereto, as amended from time to time. Words such as "herein,"
"hereinafter," "hereof," "hereto" and "hereunder" refer to this Agreement as a
whole, unless the context otherwise requires.
"ALLOCATION YEAR" means (i) the period commencing on the Effective
Date and ending on December 31, 2004, (ii) any subsequent twelve (12)-month
period commencing on January 1 and ending on December 31 or (iii) any portion of
the period described in clause (i) or (ii) above for which the Company is
required to allocate Profits, Losses and other items of Company income, gain,
loss or deduction pursuant to Article 4 hereof.
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"BANKRUPTCY" means, with respect to any Person, a "VOLUNTARY
BANKRUPTCY" or an "INVOLUNTARY BANKRUPTCY." A "VOLUNTARY BANKRUPTCY" means, with
respect to any Person, (i) the inability of such Person generally to pay its
debts as such debts become due or an admission in writing by such Person of its
inability to pay its debts generally, or a general assignment by such Person for
the benefit of creditors; (ii) the filing of any petition or answer by such
Person seeking to adjudicate itself as bankrupt or insolvent, or seeking any
liquidation, winding-up, reorganization, arrangement, adjustment, protection,
relief, or composition of such Person or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking,
consenting to, or acquiescing in the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for such
Person or for any substantial part of its Property; or (iii) corporate action
taken by such Person to authorize any of the actions set forth above. An
"INVOLUNTARY BANKRUPTCY" means, with respect to any Person, without the consent
or acquiescence of such Person, the entering of an order for relief or approving
a petition for relief or reorganization or any other petition seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or other similar relief under any present or future bankruptcy, insolvency or
similar statute, law or regulation, or the filing of any such petition against
such Person which petition shall not be dismissed within ninety (90) days, or
without the consent or acquiescence of such Person, the entering of an order
appointing a trustee, custodian, receiver or liquidator of such Person or of all
or any substantial part of the Property of such Person which order shall not be
dismissed within ninety (90) days. It is the intent of the Members that these
definitions supersede those set forth in Section 18-304 of the Act.
"BOARD" or "BOARD OF DIRECTORS" means, with respect to the Company,
the Board of Directors referred to in Article 6.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized to close in The City of New York.
"CAPITAL ACCOUNT" means, with respect to any Member, the Capital
Account established and maintained for such Member by the Company in accordance
with the following provisions:
(i) to each Member's Capital Account there shall be credited (A)
such Member's Capital Contributions and (B) such Member's distributive
share of Profits and any items in the nature of income or gain which are
specially allocated pursuant to Section 4.3 or Section 4.4 hereof;
(ii) to each Member's Capital Account there shall be debited (A) the
amount of money and the Gross Asset Value of any Property distributed to
such Member pursuant to any provision of this Agreement and (B) such
Member's distributive share of Losses and any items in the nature of
expenses or losses which are specially allocated pursuant to Section 4.3
or Section 4.4 hereof;
(iii) in the event LLC Interests are Transferred in accordance with
the terms of this Agreement, the transferee shall succeed to the Capital
Account of the transferor to the extent it relates to the Transferred LLC
Interests; and
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(iv) in determining the amount of any liability for purposes of
subparagraphs (i) and (ii) above, there shall be taken into account Code
Section 752(c) and any other applicable provisions of the Code and the
Regulations.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-1(b) and shall be interpreted and applied in a manner
consistent with such Regulations. In the event the Board of Directors shall
determine that it is prudent to modify the manner in which the Capital Accounts
or any debits or credits thereto (including, without limitation, debits or
credits relating to liabilities which are secured by contributed or distributed
property or which are assumed by the Company or any Members) are computed in
order to comply with such Regulations, the Board of Directors may make such
modification, provided that it is not likely to have a material effect on the
amounts distributed to any Person pursuant to Article 13 hereof upon the
dissolution of the Company. The Board of Directors also shall (i) make any
adjustments that are necessary or appropriate to maintain equality between the
Capital Accounts of the Members and the amount of capital reflected on the
Company's balance sheet, as computed for book purposes, in accordance with
Regulations Section 1.704-1(b)(2)(iv)(q), and (ii) make any appropriate
modifications in the event unanticipated events might otherwise cause this
Agreement not to comply with Regulations Section 1.704-1(b).
"CAPITAL CONTRIBUTIONS" means, with respect to any Member, the
amount of money and the initial Gross Asset Value of any Property (other than
money) contributed to the Company with respect to the LLC Interests of the
Company held or subscribed for by such Member.
"CERTIFICATE" means the certificate of formation filed with the
Secretary of State of the State of Delaware pursuant to the Act to form the
Company, as originally executed and amended, modified, supplemented or restated
from time to time as the context requires.
"CERTIFICATE OF CANCELLATION" means a certificate filed in
accordance with 6 Del. C. Section 18-203.
"CHAIRMAN" means the director appointed or nominated and elected, as
the case may be, Chairman of the Board of Directors of the Company, in
accordance with Section 6.9, with such powers and duties as set forth in Section
6.10 of this Agreement.
"CHIEF EXECUTIVE OFFICER" means the Chief Executive Officer of the
Company, including any interim Chief Executive Officer, with such powers and
duties as set forth in Section 7.3 of this Agreement.
"CHIEF FINANCIAL OFFICER" means the Chief Financial Officer of the
Company, including any interim Chief Financial Officer, with such powers and
duties as set forth in Section 7.4 of this Agreement.
"CODE" means the United States Internal Revenue Code of 1986, as
amended and in effect from time to time. Any reference herein to a specific
section of the Code shall be deemed to include a reference to any corresponding
provision of law in effect in the future.
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"COMPANY" means the limited liability company formed pursuant to
this Agreement and the Certificate.
"COMPANY MINIMUM GAIN" has the same meaning as the term "partnership
minimum gain" in Section 1.704-2(b)(2) and 1.704-2(d) of the Regulations.
"DEBT" means (i) any indebtedness for borrowed money or the deferred
purchase price of property as evidenced by a note, bonds or other instruments,
(ii) obligations as lessee under capital leases, (iii) obligations secured by
any mortgage, pledge, security interest, encumbrance, lien or charge of any kind
existing on any asset owned or held by the Company, whether or not the Company
has assumed or become liable for the obligations secured thereby, (iv) any
obligation under any interest rate swap agreement, (v) accounts payable and (vi)
obligations under direct or indirect guarantees of (including obligations,
contingent or otherwise, to assure a creditor against loss in respect of)
indebtedness or obligations of the kinds referred to in clauses (i), (ii),
(iii), (iv) and (v) above, provided that Debt shall not include obligations in
respect of any accounts payable that are incurred in the ordinary course of the
Company's business and are not delinquent or are being contested in good faith
by appropriate proceedings.
"DISSOLUTION EVENT" shall have the meaning set forth in Section 13.1
hereof.
"EFFECTIVE DATE" means the date hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FISCAL QUARTER" means (i) the period commencing on the Effective
Date and ending on June 30, 2004, (ii) any subsequent three (3)-month period
commencing on each of July 1, October 1, January 1 and April 1 and ending on the
last date before the next such date and (iii) the period commencing on the
immediately preceding January 1, April 1, July 1 or October 1, as the case may
be, and ending on the date on which all Property is distributed to the Members
pursuant to Article 13 hereof.
"FISCAL YEAR" means (i) the period commencing on the Effective Date
and ending on December 31, 2004, (ii) any subsequent twelve (12)-month period
commencing on January 1 and ending on December 31 and (iii) the period
commencing on the immediately preceding January 1 and ending on the date on
which all Property is distributed to the Members pursuant to Article 13 hereof.
"GAAP" means generally accepted accounting principles in effect in
the United States of America from time to time.
"GENERAL CORPORATION LAW OF THE STATE OF DELAWARE" means Del.
C.Sections 101 et seq. and, for the avoidance of any doubt, includes all
applicable jurisprudence thereunder.
"GENERAL COUNSEL" means the General Counsel of the Company,
including any interim General Counsel, with such powers and duties as set forth
in Section 7.5 of this Agreement.
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"GROSS ASSET VALUE" means, with respect to any asset, the asset's
adjusted basis for U.S. federal income tax purposes, except as follows:
(i) the initial Gross Asset Value of any asset contributed by a
Member to the Company shall be the gross fair market value of such asset,
as determined by the Board of Directors, provided that the initial Gross
Asset Value of the assets contributed to the Company pursuant to Section
3.1 hereof shall be as set forth in such section;
(ii) the Gross Asset Values of all Company assets shall be adjusted
to equal their respective gross fair market values (taking Code Section
7701(g) into account), as determined by the Board of Directors as of the
following times: (A) the acquisition of an additional interest in the
Company by any new or existing Member in exchange for more than a de
minimis Capital Contribution; (B) the distribution by the Company to a
Member of more than a de minimis amount of Company property as
consideration for an interest in the Company; and (C) the liquidation of
the Company within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g), provided that an adjustment described in clauses (A)
and (B) of this paragraph shall be made only if the Board of Directors
reasonably determines that such adjustment is necessary to reflect the
relative economic interests of the Members in the Company;
(iii) the Gross Asset Value of any item of Company assets
distributed to any Member shall be adjusted to equal the gross fair market
value (taking Code Section 7701(g) into account) of such asset on the date
of distribution, as determined by the Board of Directors; and
(iv) the Gross Asset Values of Company assets shall be increased (or
decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code Section 734(b) or Code Section 743(b), but only to the
extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) and
subparagraph (vi) of the definition of "PROFITS" and "LOSSES"; provided,
however, that Gross Asset Values shall not be adjusted pursuant to this
subparagraph (iv) to the extent that an adjustment pursuant to
subparagraph (ii) is required in connection with a transaction that would
otherwise result in an adjustment pursuant to this subparagraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted pursuant to
subparagraph (ii) or (iv), such Gross Asset Value shall thereafter be adjusted
by depreciation taken into account with respect to such asset for purposes of
computing Profits and Losses.
"INDEPENDENT DIRECTOR" means a director who is not an employee of
the Company and was not appointed as a director pursuant to the terms of the
Management Services Agreement or, so long as the Management Services Agreement
is in effect, affiliated with the Manager or Macquarie Bank Limited and who
complies with the independence requirements under the Exchange Act and the NYSE
Rules.
"INVOLUNTARY BANKRUPTCY" has the meaning set forth in the definition
of "BANKRUPTCY."
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"ISSUANCE ITEMS" has the meaning set forth in Section 4.3(h) hereof.
"LIQUIDATION PERIOD" has the meaning set forth in Section 13.7
hereof.
"LIQUIDATOR" has the meaning set forth in Section 13.9(a) hereof.
"LLC INTEREST" means a limited liability company interest in the
Company within the meaning of the Act and includes any and all benefits to which
the holder of LLC Interests may be entitled as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. The holder of each LLC Interest shall have one
vote per LLC Interest in accordance with the terms of this Agreement.
"LLC INTEREST CERTIFICATE" has the meaning set forth in Section 3.1
hereof.
"LOSSES" has the meaning set forth in the definition of "PROFITS"
and "LOSSES."
"MANAGEMENT SERVICES AGREEMENT" means the Management Services
Agreement to be entered into prior to the initial public offering of Trust Stock
by the Trust, by and among the Company, certain of its Subsidiaries and the
Manager, which will provide the terms on which the Manager will assume its
duties with respect to the management of the Company.
"MANAGER" means Macquarie Infrastructure Management (USA), Inc.,
party to the Management Services Agreement.
"MANDATORY EXCHANGE" has the meaning set forth in Section 2.3
hereof.
"MEMBER" means the Trust (the "ORIGINAL MEMBER") and any successor
to the Trust in accordance with the terms of this Agreement. "MEMBERS" means all
such Persons.
"MEMBER NONRECOURSE DEBT" has the same meaning as the term "partner
nonrecourse debt" in Section 1.704-2(b)(4) of the Regulations.
"MEMBER NONRECOURSE DEBT MINIMUM GAIN" means an amount, with respect
to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would
result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Section 1.704-2(i)(3) of the Regulations.
"MEMBER NONRECOURSE DEDUCTIONS" has the same meaning as the term
"partner nonrecourse deductions" in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of
the Regulations.
"NET CASH FLOW" means, for any period, the gross cash proceeds of
the Company for such period less the portion thereof used to pay or establish
reserves for all Company expenses, debt payments, capital improvements,
replacements and contingencies, all as determined by the Board of Directors.
"Net Cash Flow" shall not be reduced by depreciation, amortization, cost
recovery deductions or similar allowances, but shall be increased by any
reductions of reserves previously established pursuant to the first sentence of
this definition.
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"NONRECOURSE DEDUCTIONS" has the meaning set forth in Section
1.704-2(b)(1) of the Regulations.
"NONRECOURSE LIABILITY" has the meaning set forth in Section
1.704-2(b)(3) of the Regulations.
"NYSE" means the New York Stock Exchange.
"NYSE RULES" means the rules of the New York Stock Exchange.
"PERCENTAGE INTEREST" means, with respect to any Member as of any
date, the ratio (expressed as a percentage) of the number of LLC Interests held
by such Member on such date to the aggregate number of LLC Interests held by all
Members on such date.
"PERSON" means any individual, partnership (whether general or
limited), limited liability company, corporation, trust, estate, association,
nominee or other entity.
"PROFITS" and "LOSSES" mean, for each Allocation Year, an amount
equal to the Company's taxable income or loss for such Allocation Year,
determined in accordance with Code Section 703(a) (for this purpose, all items
of income, gain, loss, or deduction required to be stated separately pursuant to
Code Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments (without duplication):
(i) any income of the Company that is exempt from U.S. federal
income tax and not otherwise taken into account in computing Profits or
Losses pursuant to this definition of "Profits" and "Losses" shall be
added to such taxable income or loss;
(ii) any expenditures of the Company described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant
to Regulations Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into
account in computing Profits or Losses pursuant to this definition of
"Profits" and "Losses" shall be subtracted from such taxable income or
loss;
(iii) in the event the Gross Asset Value of any Company asset is
adjusted pursuant to subparagraph (ii) or (iii) of the definition of Gross
Asset Value, the amount of such adjustment shall be treated as an item of
gain (if the adjustment increases the Gross Asset Value of the asset) or
an item of loss (if the adjustment decreases the Gross Asset Value of the
asset) from the disposition of such asset and shall be taken into account
for purposes of computing Profits or Losses;
(iv) gain or loss resulting from any disposition of Property with
respect to which gain or loss is recognized for U.S. federal income tax
purposes shall be computed by reference to the Gross Asset Value of the
Property disposed of, notwithstanding that the adjusted tax basis of such
Property differs from its Gross Asset Value;
(v) to the extent an adjustment to the adjusted tax basis of any
Company asset pursuant to Code Section 734(b) is required, pursuant to
Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in
determining Capital Accounts as
9
a result of a distribution other than in liquidation of a Member's
interest in the Company, the amount of such adjustment shall be treated as
an item of gain (if the adjustment increases the basis of the asset) or
loss (if the adjustment decreases such basis) from the disposition of such
asset and shall be taken into account for purposes of computing Profits or
Losses; and
(vi) notwithstanding any other provision of this definition, any
items which are specially allocated pursuant to Section 4.3 or Section 4.4
hereof shall not be taken into account in computing Profits or Losses.
The amounts of the items of Company income, gain, loss or deduction available to
be specially allocated pursuant to Sections 4.3 and 4.4 hereof shall be
determined by applying rules analogous to those set forth in subparagraphs (i)
through (v) above.
"PROPERTY" means all real and personal property acquired by the
Company, including cash, and any improvements thereto, and shall include both
tangible and intangible property.
"RECONSTITUTION PERIOD" has the meaning set forth in Section 13.1(b)
hereof.
"REGULAR TRUSTEES" means the regular trustees identified in the
Trust Agreement, as amended from time to time.
"REGULATIONS" means the income tax regulations, including temporary
regulations, promulgated under the Code, as such regulations are amended from
time to time.
"REGULATORY ALLOCATIONS" has the meaning set forth in Section 4.4
hereof.
"RULES AND REGULATIONS" means the rules and regulations promulgated
under the Exchange Act and the Securities Act.
"SECRETARY" means the Secretary of the Company, with such powers and
duties as set forth in Section 7.6 of this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSIDIARY" means any corporation, partnership, joint venture,
limited liability company, association or other entity in which any Person owns,
directly or indirectly, fifty percent (50%) or more of the outstanding equity
securities or interests, the holders of which are generally entitled to vote for
the election of the board of directors or other governing body of such entity.
"TAX MATTERS MEMBER" has the meaning set forth in Section 10.3(b)
hereof.
"TRANSFER" means, as a noun, any voluntary or involuntary transfer,
sale, pledge or hypothecation or other disposition and, as a verb, voluntarily
or involuntarily to transfer, sell, pledge or hypothecate or otherwise dispose
of.
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"TRANSFER AGENT" means, with respect to the LLC Interests and the
Trust Stock, Xxxxx Fargo Bank, National Association, a national banking
association, or any successor(s) thereto.
"TRUST" means Macquarie Infrastructure Assets Trust.
"TRUST AGREEMENT" means the Trust Agreement to be entered into by
the Company and Xxxxx Fargo Delaware Trust Company, a Delaware banking
corporation, and the Regular Trustees.
"TRUST STOCK" means the certificates of beneficial interest issued
by the Trust and outstanding at the relevant time of determination.
"VOLUNTARY BANKRUPTCY" has the meaning set forth in the definition
of "BANKRUPTCY."
"WHOLLY OWNED AFFILIATE" of any Person means an Affiliate of such
Person (i) one hundred percent (100%) of the voting stock or beneficial
ownership of which is owned directly by such Person, or by any Person who,
directly or indirectly, owns one hundred percent (100%) of the voting stock or
beneficial ownership of such Person, (ii) an Affiliate to such Person who,
directly or indirectly, owns one hundred percent (100%) of the voting stock or
beneficial ownership of such Person, and (iii) any Wholly Owned Affiliate of any
Affiliate described in clause (i) or (ii) above.
ARTICLE 2
THE TRUST
Section 2.1 Trust to Be Sole Member. Simultaneously with the
execution hereof, the Company hereby issues one hundred (100) LLC Interests to
the Trust as Original Member which is being admitted to the Company in respect
thereof. It is intended that following such issuance the Trust shall be the sole
owner of the ownership interests of the Company represented by one hundred
percent (100%) of the LLC Interests. For so long as the Trust remains in
existence, the Company shall not sell, issue or otherwise transfer any of its
LLC Interests to any Person other than the Trust. Every holder of LLC Interest
Certificates, by holding and receiving the same, agrees with the Company to be
bound by the terms of this Agreement.
Section 2.2 Trust Stock to Represent LLC Interests. Each share of
Trust Stock will represent an individual beneficial interest in one LLC
Interest. At all times, the Company will have outstanding such number of LLC
Interests as is equal to the number of shares of Trust Stock that have been
issued and are outstanding.
Section 2.3 Circumstances Under Which Trust Stock Will Be Exchanged
for LLC Interests. In the event that the Trust and/or the Company is treated as
a corporation for U.S. federal income tax purposes, the Board of Directors (a)
shall deliver a mandatory instruction to the Regular Trustees, together with any
opinions of counsel or certificates of officers of the Company as the Regular
Trustees may reasonably request, directing the Regular Trustees to
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(i) deliver one LLC Interest to each holder of a share of Trust Stock in
exchange for such outstanding share of Trust Stock (the "MANDATORY EXCHANGE")
and (ii) dissolve the Trust and (b) shall deliver to the Transfer Agent notice
of such Mandatory Exchange and shall cause the Transfer Agent to mail a copy of
such notice to the holders of the Trust Stock at least thirty (30) days prior to
the Mandatory Exchange. Simultaneously with the effectiveness of such Mandatory
Exchange, each holder of a share of Trust Stock immediately prior to the
effectiveness of the Mandatory Exchange shall be admitted to the Company as a
Member in respect of one LLC Interest previously held by the Trust and shall be
issued an LLC Interest Certificate evidencing the same pursuant to Section 3.1,
immediately whereafter the Trust shall be deemed withdrawn from the Company as a
Member in respect of such LLC Interest, and the Trust shall tender its LLC
Interest Certificates to the Company for cancellation.
Section 2.4 Right to Acquire Outstanding LLC Interests.
(a) Right to Acquisition Exchange. If at any time more than ninety
(90) percent of the then outstanding Trust Stock is held by one Person (the
"ACQUIRER"), such Acquirer shall then have the right to direct the Board of
Directors to (i) deliver a mandatory instruction to the Regular Trustees
directing the Regular Trustees to (A) deliver the LLC Interests to the holders
of the Trust Stock, including the Acquirer, in exchange for all of the
outstanding shares of Trust Stock (the "ACQUISITION EXCHANGE") and (B) dissolve
the Trust and (ii) deliver to the Transfer Agent notice of such Acquisition
Exchange and cause the Transfer Agent to mail a copy of such notice to the
holders of the Trust Stock at least thirty (30) days prior to the Acquisition
Exchange. Simultaneously with the effectiveness of such Acquisition Exchange,
each holder of a share of Trust Stock immediately prior to the effectiveness of
the Acquisition Exchange shall be admitted to the Company as a Member in respect
of one LLC Interest previously held by the Trust and shall be issued an LLC
Interest Certificate evidencing the same pursuant to Section 3.1, immediately
whereafter the Trust shall be deemed withdrawn from the Company as a Member in
respect of such LLC Interest, and the Trust shall tender its LLC Interest
Certificates to the Company for cancellation.
(b) Right to Acquire LLC Interests of Remaining Holders for Cash.
Following an Acquisition Exchange, the Acquirer shall have the right to
purchase, solely for cash, and Members other than the Acquirer shall be required
to sell, all, but not less than all, of the outstanding LLC Interests not held
then by the Acquirer, at the "Offer Price."
As used in this Section 2.4, "OFFER PRICE" means the average Closing
Price (as defined below) per share of Trust Stock or LLC Interests, as
applicable, on the twenty (20) Trading Days (as defined below) immediately prior
to, but not including, the date of the Acquisition Exchange. The "CLOSING PRICE"
of any security on any date of determination means:
(1) the closing sale price (or, if no closing price is reported,
the last reported sale price) of a share of Trust Stock or an
LLC Interest, as applicable (regular way), on the NYSE on such
date,
(2) if the Trust Stock or LLC Interests are not listed for trading
on the NYSE on any such date, the closing sale price as
reported in the composite
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transactions for the principal U.S. securities exchange on
which the Trust Stock or LLC Interests, as applicable, are so
listed,
(3) if the Trust Stock or LLC Interests, as applicable, are not so
listed on a United States national or regional securities
exchange, the price as reported by The Nasdaq Stock Market,
(4) if the Trust Stock or LLC Interests, as applicable, are not so
reported, the last quoted bid price for the Trust Stock or LLC
Interests, as applicable, in the over-the-counter market as
reported by the National Quotation Bureau or a similar
organization, or
(5) if the Trust Stock or LLC Interests, as applicable, are not so
quoted, the average of the mid-point of the last bid and ask
prices for the Trust Stock or LLC Interests, as applicable,
from at least three nationally recognized investment firms
that the Company selects for such purpose.
A "TRADING DAY" means a day on which the Closing Price of the Trust
Stock or LLC Interests, as applicable, is being determined and the Trust Stock
or LLC Interests, as applicable, (A) are not suspended from trading on any
national or regional securities exchange or association or over-the-counter
market at the close of business and (B) have traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the Trust Stock or LLC
Interests, as applicable .
ARTICLE 3
ADMISSION OF MEMBERS
Section 3.1 LLC Interest Certificates; Admission of Additional
Members. The LLC Interests will be represented by certificates in the form
attached hereto as Exhibit A (the "LLC INTEREST CERTIFICATES"). The LLC Interest
Certificates shall be conclusive evidence of ownership. Every holder of an LLC
Interest of the Company shall be entitled to an LLC Interest Certificate. The
LLC Interest Certificates of the Company shall be issued under the seal of the
Company, or a facsimile thereof, and shall be numbered and shall be entered in
the books of the Company as they are issued. Each LLC Interest Certificate shall
bear a serial number, shall exhibit the holder's name and the number of LLC
Interests evidenced thereby and shall be signed by the Chief Executive Officer
or the Chief Financial Officer. Any or all of the signatures on the LLC Interest
Certificates may be facsimiles. If any officer, Transfer Agent or registrar who
has signed or whose facsimile signature has been placed upon an LLC Interest
Certificate shall have ceased to be such officer, Transfer Agent or registrar
before such LLC Interest Certificate is issued, the LLC Interest Certificate may
be issued by the Company with the same effect as if such Person or entity were
such officer, Transfer Agent, or registrar at the date of issue. From the time
of the initial public offering of the Trust Stock by the Trust, the Company
shall retain the Transfer Agent to maintain a registry of the LLC Interests and
cause such Transfer Agent to register the transfer of any LLC Interest
Certificates. Transfer of LLC Interests of the Company shall be made on the
books of the Company only upon surrender to the Company or its Transfer Agent of
the LLC Interest Certificates duly endorsed or accompanied by proper evidence of
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succession, assignment or authority to transfer; provided, however, that such
succession, assignment or transfer is not prohibited by the LLC Interest
Certificates, this Agreement, applicable law or contract. Thereupon, the Company
shall issue a new LLC Interest Certificate (if requested) to the Person entitled
thereto, cancel the old LLC Interest Certificate, and record the transaction
upon its books.
Section 3.2 Authorized Stock. The Company shall be authorized to
issue one class of limited liability company interests to be referred to as "LLC
INTERESTS," in an aggregate amount of up to five hundred million (500,000,000)
of such LLC Interests. The aggregate number of LLC Interests that are authorized
may be increased, from time to time, by the Board of Directors authorized by the
affirmative vote of a majority of the LLC Interests present in person or
represented by proxy at the meeting of the Members.
Section 3.3 Issuance of Additional LLC Interests. The Board of
Directors shall have authority to authorize the issuance, from time to time
without any vote or other action by the Members, of any or all LLC Interests of
the Company at any time authorized. While the Trust remains the sole holder of
the LLC Interests, the Company will issue additional LLC Interests to the Trust
in exchange for an equal number of shares of Trust Stock which the Company may
sell or distribute in any manner, subject to applicable law, that the Board of
Directors in its sole discretion deems appropriate and advisable.
Section 3.4 Repurchase of LLC Interests by the Company. The Board of
Directors shall have authority to cause the Company to conduct a capital
reduction, including the repurchase of any number of issued and outstanding LLC
Interests. At any time after the closing of the initial public offering of the
Trust Stock by the Trust, in the event the Board of Directors determines that
the Company shall make an offer to repurchase any number of issued and
outstanding LLC Interests, the Board of Directors shall deliver to the Transfer
Agent notice of such offer to repurchase and shall cause the Transfer Agent to
mail a copy of such notice to the Members at least thirty (30) days prior to
such offer to repurchase. Any LLC Interests tendered and repurchased by the
Company in accordance with this Section 3.4 shall be deemed to be authorized and
issued, but not outstanding, and may subsequently be sold or transferred for due
consideration.
ARTICLE 4
ALLOCATIONS
Section 4.1 Profits. After giving effect to the special allocations
set forth in Sections 4.3 and 4.4, Profits for any Allocation Year shall be
allocated to the Members in proportion to their Percentage Interests.
Section 4.2 Losses. After giving effect to the special allocations
set forth in Sections 4.3 and 4.4 and subject to Section 4.5, Losses for any
Allocation Year shall be allocated to the Members in proportion to their
Percentage Interests.
Section 4.3 Special Allocations. The following special allocations
shall be made in the following order:
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(a) Minimum Gain Chargeback. Except as otherwise provided in Section
1.704-2(f) of the Regulations, notwithstanding any other provision of this
Article 4, if there is a net decrease in Company Minimum Gain during any
Allocation Year, each Member shall be specially allocated items of Company
income and gain for such Allocation Year (and, if necessary, subsequent
Allocation Years) in an amount equal to such Member's share of the net
decrease in Company Minimum Gain, determined in accordance with
Regulations Section 1.704-2(g). Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to
be allocated to each Member pursuant thereto. The items to be so allocated
shall be determined in accordance with Sections 1.704-2(f)(6) and
1.704-2(j)(2) of the Regulations. This Section 4.3(a) is intended to
comply with the minimum gain chargeback requirement in Section 1.704-2(f)
of the Regulations and shall be interpreted consistently therewith.
(b) Member Minimum Gain Chargeback. Except as otherwise provided in
Section 1.704-2(i)(4) of the Regulations, notwithstanding any other
provision of this Article 4, if there is a net decrease in Member
Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt
during any Allocation Year, each Member who has a share of the Member
Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse
Debt, determined in accordance with Section 1.704-2(i)(5) of the
Regulations, shall be specially allocated items of Company income and gain
for such Allocation Year (and, if necessary, subsequent Allocation Years)
in an amount equal to such Member's share of the net decrease in Member
Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made
in proportion to the respective amounts required to be allocated to each
Member pursuant thereto. The items to be so allocated shall be determined
in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the
Regulations. This Section 4.3(b) is intended to comply with the minimum
gain chargeback requirement in Section 1.704-2(i)(4) of the Regulations
and shall be interpreted consistently therewith.
(c) Qualified Income Offset. In the event any Member unexpectedly
receives any adjustments, allocations or distributions described in
Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or
1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Company income and
gain shall be specially allocated to such Member in an amount and manner
sufficient to eliminate, to the extent required by the Regulations, the
Adjusted Capital Account Deficit of the Member as quickly as possible,
provided that an allocation pursuant to this Section 4.3(c) shall be made
only if and to the extent that the Member would have an Adjusted Capital
Account Deficit after all other allocations provided for in this Article 4
have been tentatively made as if this Section 4.3(c) were not in this
Agreement.
(d) Gross Income Allocation. In the event any Member has a deficit
Capital Account at the end of any Allocation Year which is in excess of
the sum of (i) the amount such Member is obligated to restore pursuant to
the penultimate sentence of each of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5), each such Member shall be specially allocated items of
Company income and gain in the amount of such excess as quickly as
possible, provided that an allocation pursuant to this Section 4.3(d)
shall be made only if and to the extent that such Member would have a
deficit Capital Account in
15
excess of such sum after all other allocations provided for in this
Article 4 have been made as if Section 4.3(c) and this Section 4.3(d) were
not in the Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any
Allocation Year shall be specially allocated to the Members in proportion
to their respective Percentage Interests.
(f) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions
for any Allocation Year shall be specially allocated to the Member who
bears the economic risk of loss with respect to the Member Nonrecourse
Debt to which such Member Nonrecourse Deductions are attributable in
accordance with Regulations Section 1.704-2(i)(1).
(g) Section 754 Adjustments. To the extent an adjustment to the
adjusted tax basis of any Company asset, pursuant to Code Section 734(b)
or Code Section 743(b), is required, pursuant to Regulations Section
1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4), to be taken into
account in determining Capital Accounts as the result of a distribution to
a Member in complete liquidation of such Member's interest in the Company,
the amount of such adjustment to Capital Accounts shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss
(if the adjustment decreases such basis) and such gain or loss shall be
specially allocated to the Members in accordance with their interests in
the Company in the event Regulations Section 1.704-1(b)(2)(iv)(m)(2)
applies or to the Member to whom such distribution was made in the event
Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.
(h) Allocations Relating to Taxable Issuance of Company LLC
Interests. Any income, gain, loss or deduction realized as a direct or
indirect result of the issuance of LLC Interests by the Company to a
Member (the "ISSUANCE ITEMS") shall be allocated among the Members so
that, to the extent possible, the net amount of such Issuance Items,
together with all other allocations made under this Agreement to each
Member, shall be equal to the net amount that would have been allocated to
each such Member if the Issuance Items had not been realized.
Section 4.4 Curative Allocations. The allocations set forth in
Sections 4.3(a), 4.3(b), 4.3(c), 4.3(d), 4.3(e), 4.3(f), 4.3(g) and 4.5 (the
"REGULATORY ALLOCATIONS") are intended to comply with certain requirements of
the Regulations. It is the intent of the Members that, to the extent possible,
all Regulatory Allocations shall be offset either with other Regulatory
Allocations or with special allocations of other items of Company income, gain,
loss or deduction pursuant to this Section 4.4. Therefore, notwithstanding any
other provision of this Article 4 (other than the Regulatory Allocations), the
Board of Directors shall make such offsetting special allocations of Company
income, gain, loss or deduction in whatever manner it determines appropriate so
that, after such offsetting allocations are made, each Member's Capital Account
balance is, to the extent possible, equal to the Capital Account balance such
Member would have had if the Regulatory Allocations were not part of the
Agreement and all Company items were allocated pursuant to Sections 4.1, 4.2 and
4.3(h).
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Section 4.5 Loss Limitation. Losses allocated pursuant to Section
4.2 hereof shall not exceed the maximum amount of Losses that can be allocated
without causing any Member to have an Adjusted Capital Account Deficit at the
end of any Allocation Year. In the event some but not all of the Members would
have Adjusted Capital Account Deficits as a consequence of an allocation of
Losses pursuant to Section 4.2 hereof, the limitation set forth in this Section
4.5 shall be applied on a Member by Member basis and Losses not allocable to any
Member as a result of such limitation shall be allocated to the other Members in
accordance with the positive balances in such Member's Capital Accounts so as to
allocate the maximum permissible Losses to each Member under Section
1.704-1(b)(2)(ii)(d) of the Regulations.
Section 4.6 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses, or any other
items allocable to any period, Profits, Losses, and any other such items shall
be determined on a monthly, or other basis, as determined by the Company using
any permissible method under Code Section 706 and the Regulations thereunder.
(b) The Members are aware of the income tax consequences of the
allocations made by this Article 4 and hereby agree to be bound by the
provisions of this Article 4 in reporting their shares of Company income and
loss for income tax purposes.
(c) Solely for purposes of determining a Member's proportionate
share of the "excess nonrecourse liabilities" of the Company within the meaning
of Regulations Section 1.752-3(a)(3), the Members' interests in Company profits
are in proportion to their Percentage Interests.
To the extent permitted by Section 1.704-2(h)(3) of the Regulations,
the Manager shall endeavor to treat distributions as having been made from the
proceeds of a Nonrecourse Liability or a Member Nonrecourse Debt only to the
extent that such distributions would cause or increase an Adjusted Capital
Account Deficit for any Member.
Section 4.7 Tax Allocations: Code Section 704(c). In accordance with
Code Section 704(c) and the Regulations thereunder, income, gain, loss and
deduction with respect to any Property contributed to the capital of the Company
shall, solely for tax purposes, be allocated among the Members so as to take
account of any variation between the adjusted basis of such Property to the
Company for U.S. federal income tax purposes and its initial Gross Asset Value
(computed in accordance with the definition of Gross Asset Value) using a
method, selected in the discretion of the Board of Directors, in accordance with
Section 1.704-3 of the Regulations.
In the event the Gross Asset Value of any Company asset is adjusted
pursuant to subparagraph (ii) of the definition of Gross Asset Value, subsequent
allocations of income, gain, loss and deduction with respect to such asset shall
take account of any variation between the adjusted basis of such asset for U.S.
federal income tax purposes and its Gross Asset Value in the same manner as
under Code Section 704(c) and the Regulations thereunder.
Any elections or other decisions relating to such allocations shall
be made by the Company in any manner that reasonably reflects the purpose and
intention of this Agreement.
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Allocations pursuant to this Section 4.7 are solely for purposes of U.S.
federal, state and local taxes and shall not affect, or in any way be taken into
account in computing, any Member's Capital Account or share of Profits, Losses,
other items or distributions pursuant to any provision of this Agreement.
ARTICLE 5
DIVIDEND DISTRIBUTIONS
Section 5.1 Net Cash Flow. Except as otherwise provided in Section
5.3 and Section 13 hereof, the Board of Directors may, in their sole discretion
and at any time, declare dividends and make and pay such distributions per LLC
Interest from Net Cash Flow, to the Members in proportion to their Percentage
Interests.
Section 5.2 Amounts Withheld. All amounts withheld pursuant to the
Code or any provision of any state, local or foreign tax law with respect to any
payment, dividend or other distribution or allocation to the Company or the
Members shall be treated as amounts paid, as the case may be, to the Members
with respect to which such amount was withheld pursuant to this Article 5.2 for
all purposes under this Agreement. The Company is authorized to withhold from
payments or with respect to allocations to the Members, and to pay over to any
U.S. federal, state and local government or any foreign government, any amounts
required to be so withheld pursuant to the Code or any provisions of any other
U.S. federal, state or local law or any foreign law, and shall allocate any such
amounts to the Members with respect to which such amount was withheld. For so
long as the Trust is a Member, all amounts withheld in accordance with this
Section 5.2 will be treated as amounts paid, as the case may be, to holders of
the Trust Stock and any such amounts shall be allocated to the holders of the
Trust Stock in the same amount as any such allocation was made per LLC Interest.
Section 5.3 Limitations on Distributions.
(a) The Company shall make no dividend or other distributions to the
Members except as provided in this Article 5 and Section 13 hereof.
(b) A Member may not receive a dividend or other distribution from
the Company to the extent such dividend or other distribution is inconsistent
with, or in violation of, the Act.
ARTICLE 6
BOARD OF DIRECTORS
Section 6.1 Initial Board. Initially, the Board of Directors shall
be comprised of the following individuals: Xxxx Xxxxxxx, Xxxxx Xxxxxx and
Xxxxxxx Xxxx (the "INITIAL BOARD"). Each member of the Initial Board shall hold
office until his successor is elected or appointed and qualified, or until his
earlier resignation or removal in accordance with this Article 6. The Initial
Board shall have all of the powers and authorities accorded to members of the
Board of Directors under the terms of this Agreement.
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Section 6.2 General Powers. The business and affairs of the Company
shall be managed by or under the direction of its Board of Directors. In
addition to the powers and authorities expressly conferred upon them by this
Agreement, the Board of Directors may exercise all such powers of the Company
and do all such lawful acts and things as are not by applicable law, including
the Rules and Regulations, or by this Agreement required to be exercised or done
by the Members. Without limiting the generality of the foregoing, it shall be
the responsibility of the Board of Directors to establish broad objectives and
the general course of the business, determine basic policies, appraise the
adequacy of overall results, and generally represent and further the interests
of the Company's Members.
Section 6.3 Duties of Directors. The duties of the members of the
Board of Directors are intended to be consistent with the requirements of the
General Corporation Law of the State of Delaware applicable to directors of a
corporation incorporated under the General Corporation Law of the State of
Delaware, as if such members of the Board of Directors were directors of a
corporation incorporated under the General Corporation Law of the State of
Delaware. The duties of the members of the Board of Directors will be
interpreted consistently with the provisions of, and jurisprudence regarding,
the General Corporation Law of the State of Delaware.
Section 6.4 Number, Tenure and Qualifications. Subject to Section
6.1, the composition of the Board of Directors shall consist, at all times after
the initial public offering of the shares of Trust Stock by the Trust, of at
least three (3) Independent Directors for every director that is not an
Independent Director. Subject to this Section 6.4, the number of directors shall
be fixed from time to time exclusively pursuant to a resolution adopted by the
Board of Directors, but shall consist of not less than four (4) nor more than
twelve (12) directors. However, no decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director. The term of each director shall be the period from the effective date
of such director's election to the next annual meeting of Members at which time
such director's successor is duly elected and qualified or until such director's
earlier resignation or removal. Directors need not be residents of the State of
Delaware or Members.
Section 6.5 Election of Directors. Except as provided in Sections
6.1, 6.8 and with respect to any director to be appointed by the Manager to
serve as Chairman in accordance with Section 6.9, the directors shall be elected
at the annual meeting of Members. At any meeting of Members duly called and held
for the election of directors at which a quorum is present, directors shall be
elected by a plurality of the voting power of the LLC Interests present in
person or represented by proxy at the meeting of Members.
Section 6.6 Removal. With the exception of the director appointed by
the Manager to serve as the Chairman of the Company pursuant to the Management
Services Agreement, any directors may be removed from office, with or without
cause, by the affirmative vote of the Members holding a majority of the voting
power of the issued and outstanding LLC Interests. If any directors are so
removed, new directors may be elected by the Members at the same meeting or by
written consent of the Members as set forth in Section 9.14. For so long as the
Manager is entitled to appoint the director of the Board of Directors to serve
as Chairman pursuant to the terms of the Management Services Agreement, the
Manager may, it its sole
19
discretion, remove the Chairman from office, with or without cause. If the
Chairman is so removed, a new Chairman shall be appointed in accordance with
Section 6.9.
Section 6.7 Resignations. Any director, whether elected or
appointed, may resign at any time upon notice of such resignation to the
Company.
Section 6.8 Vacancies and Newly Created Directorships. Subject to
Section 6.9, vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, although less than a quorum, or by a sole
remaining director. Unless otherwise provided in this Agreement, when one or
more directors, other than a director appointed by the Manager pursuant to
Section 6.9 hereof, shall resign from the Board, a majority of directors then in
office shall have the power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective. For
so long as the Manager is entitled to appoint the director of the Board of
Directors to serve as Chairman pursuant to the terms of the Management Services
Agreement, the Manager shall be entitled to appoint the successor to the
Chairman upon resignation or removal by the Manager of any Chairman.
Section 6.9 Appointment of or Nomination and Election of Chairman.
For so long as the Manager is entitled to appoint the director of the Board of
Directors to serve as Chairman pursuant to the terms of the Management Services
Agreement, the Manager shall appoint one director of the Board of Directors to
serve as Chairman, and one alternate therefor to serve in such capacity in the
absence of the appointed Chairman. In all other cases, the nomination of the
director of the Board of Directors to serve as Chairman and the election of such
director by the Members at a Members' meeting shall be conducted in accordance
with Sections 9.8 and 9.9.
Section 6.10 Chairman of the Board. The Chairman of the Board shall
be a member of the Board of Directors. The Chairman is not required to be an
employee of the Company. The Chairman of the Board, if present, shall preside at
all meetings of the Board of Directors. In the absence or disability of the
Chairman of the Board and any alternate therefor, the duties of the Chairman of
the Board shall be performed, and the Chairman of the Board's authority may be
exercised, by a director designated for this purpose by the remaining members of
the Board of Directors. The Chairman of the Board shall perform such other
duties and have such other powers as may be prescribed by the Board of Directors
or this Agreement, all in accordance with basic policies as may be established
by the Company, and subject to the approval and oversight of the Board of
Directors.
Section 6.11 Regular Meetings. A regular meeting of the Board of
Directors shall be held without any other notice than this Agreement,
immediately after, and at the same place (if any) as, each annual meeting of
Members. The Board of Directors may, by resolution, provide the time and place
(if any) for the holding of additional regular meetings without any other notice
than such resolution. Unless otherwise determined by the Board of Directors, the
Secretary of the Company shall act as Secretary at all regular meetings of the
Board of Directors and in the Secretary's absence a temporary Secretary shall be
appointed by the Chairman of the meeting.
20
Section 6.12 Special Meetings. Special meetings of the Board of
Directors shall be called at the request of the Chairman of the Board, or a
majority of the Board of Directors. The Person or Persons authorized to call
special meetings of the Board of Directors may fix the place and time of the
meetings. Unless otherwise determined by the Board of Directors, the Secretary
of the Company shall act as Secretary at all special meetings of the Board of
Directors and in the Secretary's absence a temporary Secretary shall be
appointed by the Chairman of the meeting.
Section 6.13 Notice for Special Meetings. Notice of any special
meeting of the Board of Directors shall be mailed to each director at his
business or residence not later than three (3) days before the day on which such
meeting is to be held or shall be sent to either of such places by telegraph,
express courier service (including, without limitation, Federal Express) or
facsimile (directed to the facsimile number to which the director has consented
to receive notice) or other electronic transmission (including, but not limited
to, an e-mail address at which the director has consented to receive notice), or
be communicated to each director personally or by telephone, not later than one
(1) day before such day of meeting; provided, however, that if the business to
be transacted at such special meeting includes a proposed amendment to this
Agreement, notice shall be communicated to each director personally or by
telephone, not later than three (3) days before such day of meeting. Except in
the case where the business to be transacted at such special meeting includes a
proposed amendment to this Agreement, neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice of such meeting. A meeting may be held at any
time without notice if all the directors are present or if those not present
waive notice of the meeting in accordance with Section 9.12 hereof, either
before or after such meeting.
Section 6.14 Action Without Meeting. Any action required or
permitted to be taken at any meeting by the Board of Directors or any committee
or subcommittee thereof, as the case may be, may be taken without a meeting if a
consent thereto is signed by all members of the Board or of such committee or
subcommittee, as the case may be, provided that such consent thereto in writing
or by electronic transmission is provided by all of the members of the Board of
Directors (or such committee or subcommittee), and the writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board of Directors or such committee or subcommittee;
provided, however, that such electronic transmission or transmissions must
either set forth or be submitted with information from which it can be
determined that the electronic transmission or transmissions were authorized by
the director. Such filing shall be in paper form if the minutes are maintained
in paper form and shall be in electronic form if the minutes are maintained in
electronic form.
Section 6.15 Conference Telephone Meetings. Members of the Board of
Directors, or any committee or subcommittee thereof, may participate in a
meeting of the Board of Directors or such committee or subcommittee by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
Section 6.16 Quorum. At all meetings of the Board of Directors, a
majority of the then total number of directors (such total number of directors,
the "ENTIRE BOARD OF
21
DIRECTORS") shall constitute a quorum for the transaction of business. At all
meetings of the committees of the Board of Directors, the presence of a majority
of the total number of members (assuming no vacancies) shall constitute a
quorum. The act of a majority of the directors or committee members present at
any meeting at which there is a quorum shall be the act of the Board of
Directors or such committee, as the case may be. If a quorum shall not be
present at any meeting of the Board of Directors or any committee, a majority of
the directors or members, as the case may be, present thereat may adjourn the
meeting from time to time without further notice other than announcement at the
meeting. The members of the Board of Directors present at a duly organized
meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough members of the Board of
Directors to leave less than a quorum.
Section 6.17 Committees.
(a) Following the election of the successors to each of the members
of the Initial Board, the Company shall have three standing committees: the
Nominating and Governance Committee, the Audit Committee and the Compensation
Committee as set out below. Each of the Nominating and Governance Committee, the
Audit Committee and the Compensation Committee shall adopt by resolution a
charter to establish the rules and responsibilities of such committee in
accordance with applicable law, including the Rules and Regulations and the NYSE
Rules.
(i) Nominating and Governance Committee. The Board of Directors, by
resolution adopted by a majority of the whole Board, will designate a Nominating
and Governance Committee comprised of Independent Directors, which Committee
shall oversee the Company's commitment to good corporate governance and develop
and recommend to the Board a set of corporate governance principles and oversee
the evaluation of the Board and the management.
In addition, the Committee shall recommend to the Board specific
policies or guidelines concerning criteria for Board membership, and shall also
recommend to the Board nominees for election to the Board of Directors in
connection with any meeting of Members at which directors are to be elected or
to fill any Board vacancy which the Board of Directors is authorized under this
Agreement to fill, and may also recommend to the Board specific policies or
guidelines concerning the structure and composition of Board Committees, the
size and composition of the Board and the selection, tenure and retirement of
directors and matters related thereto.
(ii) Audit Committee. The Board of Directors, by resolution adopted
by a majority of the whole Board, will designate not fewer than three (3) nor
more than seven (7) Independent Directors, all of whom meet the financial
literacy requirements of law and of the NYSE. At least one member of the
Committee will meet the accounting or related financial management expertise
required to be established by the Board of Directors. The Committee shall review
on behalf of the Company and make recommendations to the Board of Directors with
respect to: the independence, qualifications and services of the independent
public accountants employed by the Company from time to time to audit the books
of the Company, the scope of their audits, the adequacy of their audit reports,
and recommendations made by them.
22
The Committee shall also make such reviews of internal financial audits and
controls as the Committee considers desirable.
The Audit Committee, in its capacity as a committee of the Board of
Directors, shall be directly responsible for the appointment, compensation,
retention and oversight of the work of any registered public accounting firm
engaged (including resolution of disagreements between management, including the
Manager and the auditor regarding financial reporting) for the purposes of
preparing or issuing an audit report or performing other audit review, or attest
services for the Company, and each such registered public accounting firm must
report directly to the Audit Committee.
The Audit Committee shall review the Company's financial disclosure
documents, significant developments in accounting principles and significant
proposed changes in financial statements and any auditor's attestation report on
management's assessment of the Company's internal control and financial
reporting to be included in the Company's annual report to be filed with the
Securities and Exchange Commission in accordance with the Exchange Act and the
Rules and Regulations. The Audit Committee shall also review and monitor the
Company's codes of conduct to guard against significant conflicts of interest
and dishonest, unethical or illegal activities. The Audit Committee shall review
periodically the performance of the Company's accounting and financial
personnel, and shall review material litigation and regulatory proceedings and
other issues relating to potentially significant corporate liability.
The Audit Committee will also be designated as and serve as the
Qualified Legal Compliance Committee and will be responsible, upon receipt of a
report of evidence of a material legal violation, for notifying the Chief
Executive Officer or General Counsel of such report; investigating and
recommending appropriate measures to the Board of Directors and if the Company
does not appropriately respond, taking further appropriate action, including
notification to the Securities and Exchange Commission.
The Audit Committee shall establish procedures for: (a) the receipt,
retention, and treatment of complaints received by the Company regarding
accounting, internal accounting controls, or auditing matters; and (b) the
submission by employees of the Company and others, on a confidential and
anonymous basis, of concerns regarding questionable accounting or auditing
matters.
The Audit Committee shall have the authority to engage independent
counsel and other advisors, as it determines necessary to carry out its duties.
The Company shall provide appropriate funding, as determined by the
Audit Committee, in its capacity as a committee of the Board of Directors for
payment of:
(A) compensation to any registered public accounting firm engaged
for the purpose of preparing or issuing an audit report or performing
other audit, review or attest services for the Company;
(B) compensation to independent counsel and other advisors engaged
pursuant to the above paragraph; and
23
(C) ordinary administrative expenses of the Audit Committee that are
necessary or appropriate in carrying out its duties.
(iii) Compensation Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, will designate a Compensation
Committee comprised of Independent Directors. The Compensation Committee shall
be responsible for monitoring the Manager for compliance with the Management
Services Agreement and for evaluating the performance of the Chief Executive
Officer, the Chief Financial Officer and the General Counsel and making such
recommendations to the Manager with respect to the officers that the
Compensation Committee deems appropriate.
(b) In addition, the Board of Directors may designate one or more
additional committees and subcommittees, with each such committee or
subcommittee consisting of such number of directors of the Company and having
such powers and authority as shall be determined by resolution of the Board of
Directors.
(c) All acts done by any committee or subcommittee within the scope
of its powers and authority pursuant to this Agreement and the resolutions
adopted by the Board of Directors in accordance with the terms hereof shall be
deemed to be, and may be certified as being, done or conferred under authority
of the Board of Directors. The Secretary is empowered to certify that any
resolution duly adopted by any such committee is binding upon the Company and to
execute and deliver such certifications from time to time as may be necessary or
proper to the conduct of the business of the Company.
(d) Regular meetings of committees shall be held at such times as
may be determined by resolution of the Board of Directors or the committee or
subcommittee in question and no notice shall be required for any regular meeting
other than such resolution. A special meeting of any committee or subcommittee
shall be called by resolution of the Board of Directors or by the Secretary upon
the request of the Chairman or a majority of the members of any committee.
Notice of special meetings shall be given to each member of the committee in the
same manner as that provided for in Section 6.13 of this Agreement.
Section 6.18 Committee Members.
(a) Each member of any committee of the Board of Directors shall
hold office until such member's successor is elected and has qualified, unless
such member sooner dies, resigns or is removed.
(b) For so long as the Manager is entitled to appoint the director
of the Board of Directors to serve as Chairman pursuant to the terms of the
Management Services Agreement, the Manager may designate one director to serve
as the Chairman where the appointed Chairman, and any alternate therefor, is
unavailable for any reason. In all other cases, the Board of Directors may
designate one or more directors as alternate members of any committee to fill
any vacancy on a committee and to fill a vacant chairmanship of a committee,
occurring as a result of a member or chairman leaving the committee, whether
through death, resignation, removal or otherwise.
24
Section 6.19 Committee Secretary. The Secretary of the Company shall
act as Secretary of any such committee or subcommittee, unless otherwise
provided by the Board of Directors or the committee or subcommittee, as
applicable.
Section 6.20 Compensation. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be paid
compensation as director or chairman of any committee or subcommittee, as the
case may be, as determined by the Initial Board or the Compensation Committee,
as the case may be. Members of special or standing committees may be allowed
like compensation and payment of expenses for attending committee meetings. For
so long as the Manager is entitled to appoint the director of the Board of
Directors to serve as Chairman pursuant to the terms of the Management Services
Agreement, the Chairman shall not receive any compensation from the Company for
his or her service as Chairman of the Board, but shall be entitled to the
payment of all out-of-pocket expenses incurred in attending regular or special
meetings of the Board.
Section 6.21 Indemnification and Insurance.
(a) Each Person who was or is made a party or is threatened to be
made a party to or is involved in any manner in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter, a "PROCEEDING"), by reason of the fact that he, she
or a Person of whom he or she is the legal representative who is or was a
director or officer of the Company, or is or was serving at the request of the
Company as a director or officer of a Subsidiary of the Company, if the Person
acted in good faith and in a manner the Person reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the Person's
conduct was unlawful, shall be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the Person in connection with such proceeding, and held
harmless by the Company to the fullest extent permitted from time to time by the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended (but, if permitted by applicable law, in the case of any
such amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment) or any other applicable laws as presently or
hereafter in effect, and such indemnification shall continue as to a Person who
has ceased to be a director or officer and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that the Company
shall indemnify any such Person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such Person only if such proceeding
(or part thereof) was authorized by the Board of Directors or is a proceeding to
enforce such Person's claim to indemnification pursuant to the rights granted by
this Agreement. The Company shall pay the expenses (including attorneys' fees)
incurred by such Person in defending any such proceeding in advance of its final
disposition upon receipt (unless the Company upon authorization of the Board of
Directors waives such requirement to the extent permitted by applicable law) of
an undertaking by or on behalf of such Person to repay such amount if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such Person is not entitled to be indemnified by
the Company as authorized in this Agreement or otherwise.
25
(b) Any indemnification of a present or former director or officer
under this Section 6.21 shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the present or former
director or officer is proper in the circumstances because the Person has met
the applicable standard of conduct set forth in Section 6.3 and acted in good
faith and in a manner the Person reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the Person's conduct was
unlawful. Such determination shall be made, with respect to a Person who is a
director or officer at the time of such determination, (1) by a majority vote of
the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, (2) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, (3) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the Members. The indemnification and the
advancement of expenses incurred in defending a proceeding prior to its final
disposition provided by or granted pursuant to this Agreement shall not be
exclusive of any other right which any Person may have or hereafter acquire
under any statute, provision of the Certificate, other provision of this
Agreement, vote of Members or Disinterested Directors or otherwise. No repeal,
modification or amendment of, or adoption of any provision inconsistent with,
this Section 6.21, nor to the fullest extent permitted by applicable law, any
modification of law, shall adversely affect any right or protection of any
Person granted pursuant hereto existing at, or with respect to any events that
occurred prior to, the time of such repeal, amendment, adoption or modification.
(c) The Company may maintain insurance, at its expense, to protect
itself and any Person who is or was a director, officer, partner, member,
employee or agent of the Company or a Subsidiary or of another corporation,
partnership, limited liability company, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Company would have
the power to indemnify such Person against such expense, liability or loss under
the General Corporation Law of the State of Delaware.
(d) The Company may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to be paid
by the Company the expenses incurred in defending any proceeding in advance of
its final disposition, to any Person who is or was an employee or agent (other
than those Persons indemnified pursuant to clause (a) of this Section 6.21) and
to any Person who is or was serving at the request of the Company or a
Subsidiary as a director, officer, partner, member, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust or
other enterprise, including service with respect to employee benefit plans
maintained or sponsored by the Company or a Subsidiary, to the fullest extent of
the provisions of this Agreement with respect to the indemnification and
advancement of expenses of directors and officers of the Company. The payment of
any amount to any Person pursuant to this clause (d) shall subrogate the Company
to any right such Person may have against any other Person or entity.
(e) The indemnification provided in this Section 6.21 is intended to
comply (subject to the limitations expressly provided in this Agreement) with
the requirements of the General Corporation Law of the State of Delaware as it
relates to the indemnification of officers, directors, employees and agents of a
Delaware corporation and, as such, should be interpreted
26
consistently with the provisions of, and jurisprudence regarding, the General
Corporation Law of the State of Delaware.
(f) Any notice, request, or other communications required or
permitted to be given to the Company under this Section 6.21 shall be in writing
and either delivered in Person or sent by facsimile, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the General Counsel or the Secretary of the Company
and shall be effective only upon receipt by the General Counsel or the
Secretary, as the case may be.
(g) To the fullest extent permitted by the Law of the State of
Delaware, each Member, director and officer of the Company agrees that all
actions for the advancement of expenses or indemnification brought under this
Section 6.21 or under any vote of Members or Disinterested Directors or
otherwise shall be a matter to which Section 18-111 of the Act shall apply and
which shall be brought in the Court of Chancery of the State of Delaware. The
Court of Chancery may summarily determine the Company's obligations to advance
expenses (including attorney's fees).
(h) No director shall be liable to the Company or the Members for
monetary damages for any breach of fiduciary duty by such director as a
director; provided, however, that a director shall be liable to the same extent
as if he or she were a director of a Delaware corporation pursuant to the
General Corporation Law of the State of Delaware (i) for breach of the
directors' duty of loyalty to the Company or its Members, (ii) for acts or
omissions not in good faith or a knowing violation of applicable law, (iii)
pursuant to Section 174 of the General Corporation Law of the State of Delaware
(as if he or she were a director of a Delaware corporation), or (iv) for any
transaction for which the director derived an improper benefit.
(i) For purposes of this Section 6.21, "DISINTERESTED DIRECTOR"
means a director of the Company who is not and was not a party to the proceeding
or matter in respect of which indemnification is sought by the claimant.
ARTICLE 7
OFFICERS
Section 7.1 General.
(a) The officers of the Company shall be elected by the Board of
Directors. Prior to the election of successors to the Initial Board, the
officers of the Company shall consist of a Chief Executive Officer, Chief
Financial Officer and Secretary. Thereafter, the officers of the Company shall
consist of a Chief Executive Officer, a Chief Financial Officer, a General
Counsel and a Secretary and, subject to clause (b) of this Section 7.1, such
other officers as in the judgment of the Board of Directors may be necessary or
desirable. All officers elected by the Board of Directors shall have such powers
and duties as generally pertain to their respective offices, subject to the
specific provisions of this Article 7. Such officers shall also have powers and
duties as from time to time may be conferred by the Board of Directors or any
committee thereof. Any number of offices may be held by the same Person, unless
otherwise prohibited by
27
law or this Agreement. The officers of the Company need not be Members or
directors of the Company.
(b) For so long as the Management Services Agreement is in effect,
the Manager shall, subject at all times to the supervision of the Board of
Directors, provide and be responsible for the day-to-day management of the
Company, including the secondment of personnel nominated to serve as the Chief
Executive Officer, Chief Financial Officer, General Counsel and Secretary. In
accordance with the terms of the Management Services Agreement, only the Manager
will have the right to nominate officers of the Company. The Board of Directors
shall elect such nominated personnel as officers of the Company in accordance
with this Article 7. In the event that the appointment of the Manager is
terminated pursuant to the terms of the Management Services Agreement and no
replacement manager is retained, the Board of Directors may accept nominations
for officers of the Company from the members of the Board of Directors.
Section 7.2 Election and Term of Office. Subject to Section 7.1(b),
the elected officers of the Company shall be elected annually by the Board of
Directors at the regular meeting of the Board of Directors held after each
annual meeting of the Members. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as is convenient.
Each officer shall hold office until his or her successor shall have been duly
elected and qualified or until his or her death or resignation or removal.
Section 7.3 Chief Executive Officer. The Chief Executive Officer of
the Company shall supervise, coordinate and manage the Company's business and
operations, and supervise, coordinate and manage its activities, operating
expenses and capital allocation, shall have general authority to exercise all
the powers necessary for the Chief Executive Officer of the Company and shall
perform such other duties and have such other powers as may be prescribed by the
Board of Directors or this Agreement, all in accordance with basic policies as
may be established by the Board of Directors and subject to the oversight of the
Board of Directors.
Section 7.4 Chief Financial Officer. The Chief Financial Officer
shall have responsibility for the financial affairs of the Company, including
the preparation of financial reports, managing financial risk and overseeing
accounting and internal control over financial reporting, subject to the
responsibilities of the Audit Committee. Prior to the appointment of a General
Counsel, the Chief Financial Officer shall be responsible for the performance of
the duties of Secretary. The Chief Financial Officer shall perform such other
duties and have such other powers as may be prescribed by the Board of Directors
or this Agreement, all in accordance with basic policies as may be established
by the Board of Directors and subject to the oversight of the Board of Directors
and the Chief Executive Officer.
Section 7.5 General Counsel. The General Counsel (if any) shall have
responsibility for the legal affairs of the Company and for the performance of
the duties of the Secretary. The General Counsel shall perform such other duties
and have such other powers as may be prescribed by the Board of Directors or
this Agreement, all in accordance with basic policies as may be established by
the Board of Directors and subject to the oversight of the Board of Directors
and the Chairman and Chief Executive Officer.
28
Section 7.6 Secretary. The Secretary shall act as secretary of all
meetings of Members, the Board of Directors and any meeting of any committee of
the Board of Directors. The Secretary shall prepare and keep or cause to be kept
in books provided for the purpose minutes of all meetings of Members, the Board
of Directors and any meeting of any committee of the Board of Directors; shall
see that all notices are duly given in accordance with the provisions of this
Agreement and applicable law and shall perform all duties incident to the office
of Secretary and as required by law and such other duties as may be assigned to
him or her from time to time by the Board of Directors.
Section 7.7 Resignations. Any officer of the Company may resign at
any time upon notice of such resignation to the Company.
Section 7.8 Vacancies. Except as provided in Section 7.1(b), a newly
created office and a vacancy in any office because of death, resignation, or
removal may be filled by the Board of Directors for the unexpired portion of the
term at any meeting of the Board of Directors.
Section 7.9 Limitation of Liability. No officer shall be liable to
the Company or the Members for monetary damages for any breach of fiduciary duty
by such officer as an officer; provided, however, that an officer shall be
liable to the same extent as if such officer were an officer of a corporation
incorporated under the General Corporation Law of the State of Delaware for (i)
acts or omissions not in good faith or a knowing violation of applicable law or
(ii) any transaction for which the officer derived an improper benefit.
ARTICLE 8
MANAGEMENT
Section 8.1 Duties of the Manager. For so long as the Management
Services Agreement is in effect and subject at all times to the oversight of the
Board of Directors, the Manager will manage the business of the Company and
provide its services to the Company in accordance with the terms of the
Management Services Agreement.
Section 8.2 Replacement Manager. In the event that the Management
Services Agreement is terminated and the Board of Directors determines that a
replacement manager should be retained to provide for the management of the
Company pursuant to a management services agreement or otherwise, the
affirmative vote of a majority of the LLC Interests present in person or
represented by proxy at the meeting of Members shall be required to retain such
replacement manager.
ARTICLE 9
THE MEMBERS
Section 9.1 Rights or Powers. The Members shall not have any right
or power to take part in the management or control of the Company or its
business and affairs or to act for or bind the Company in any way.
Notwithstanding the foregoing, the Members have all the rights
29
and powers specifically set forth in this Agreement including those rights and
powers set forth in Section 11.1 and, to the extent not inconsistent with this
Agreement, in the Act.
Section 9.2 Annual Meetings of Members. The annual meeting of the
Members of the Company shall be held at such date, at such time, and at such
place (if any) within or without the State of Delaware as may be fixed by
resolution of the Board of Directors.
Section 9.3 Special Meetings of Members. Special meetings of the
Members of the Company shall be held on such date, at such time, and at such
place (if any) within or without the State of Delaware as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting. Special meetings of the Members may be called at any time only by the
Secretary either at the direction of the Board of Directors pursuant to a
resolution adopted by the Board of Directors or by the Chairman of the Board.
Section 9.4 Place of Meeting. The Board of Directors may designate
the place (if any) of meeting for any meeting of the Members. If no designation
is made by the Board of Directors, the place of meeting shall be the principal
office of the Company. In lieu of holding any meeting of Members at a designated
place, the Board of Directors may, in its sole discretion, determine that any
meeting of Members may be held solely by means of remote communication.
Section 9.5 Notice of Meeting.
(a) A notice of meeting, stating the place (if any), day and hour of
the meeting, and the means of remote communication, if any, by which Members and
proxy holders may be deemed to be present in person and vote at such meeting,
shall be prepared and delivered by the Company not less than twenty (20) days
and not more than sixty (60) days before the date of the meeting, either
personally, by mail, or, to the extent and in the manner permitted by applicable
law, electronically, to each Member of record. In the case of special meetings,
the notice shall state the purpose or purposes for which such special meeting is
called. Such further notice shall be given as may be required by law. Only such
business shall be conducted at a special meeting of Members as shall have been
brought before the meeting pursuant to the Company's notice of meeting. Any
previously scheduled meeting of the Members may be postponed, and (unless this
Agreement otherwise provides) any special meeting of the Members may be
canceled, by resolution of the Board of Directors upon public notice given prior
to the time previously scheduled for such meeting of Members.
(b) Notice to Members may be given by personal delivery, mail or,
with the consent of the Member entitled to receive notice, facsimile or other
means of electronic transmission. If mailed, such notice shall be delivered by
postage prepaid envelope directed to each stockholder at such Member's address
as it appears in the records of the Company and shall be deemed given when
deposited in the United Sates mail. Notice given by electronic transmission
pursuant to this subsection shall be deemed given: (1) if by facsimile
telecommunication, when directed to a facsimile telecommunication number at
which the Member has consented to receive notice; (2) if by electronic mail,
when directed to an electronic mail address at which the Member has consented to
receive notice; (3) if by posting on an electronic network together with
separate notice to the Member of such specific posting, upon the later of (A)
such posting and (B) the giving of such separate notice; and (4) if by any other
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form of electronic transmission, when directed to the Member. An affidavit of
the Secretary or an assistant Secretary or of the transfer agent or other agent
of the Company that the notice has been given by personal delivery, mail or a
form of electronic transmission shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
(c) Notice of any meeting of Members need not be given to any Member
if waived by such Member either in a writing signed by such Member or by
electronic transmission, whether such waiver is given before or after such
meeting is held. If such a waiver is given by electronic transmission, the
electronic transmission must either set forth or be submitted with information
from which it can be determined that the electronic transmission was authorized
by the Member.
(d) In order that the Company may determine the Members entitled to
notice of or to vote at any meeting of Members or any adjournment thereof, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which record date shall not be more than sixty (60) or
fewer than ten (10) days before the date of such meeting. If no record date is
fixed by the Board of Directors, the record date for determining Members
entitled to notice of or to vote at any meeting of Members or any adjournment
thereof shall be at the close of business on the day next preceding the day on
which notice is given or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held.
Section 9.6 Quorum and Adjournment. Except as otherwise provided by
law or by the Certificate or this Agreement, the Members holding a majority of
the voting power of the outstanding LLC Interests of the Company (the "REQUIRED
LLC INTERESTS"), represented in person or by proxy, shall constitute a quorum at
a meeting of Members. The Chairman of the Board or the holder of a majority of
the voting power of the LLC Interests so represented may adjourn the meeting
from time to time, whether or not there is such a quorum. Special meetings of
the Members may be called at any time only by the Secretary either at the
direction of the Board of Directors pursuant to a resolution adopted by the
Board of Directors or by the Chairman of the Board. The Members present at a
duly organized meeting at which a quorum is present in person or by proxy may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough Members to leave less than a quorum.
When a meeting is adjourned to another time and place, if any,
unless otherwise provided by this Agreement, notice need not be given of the
reconvened meeting if the date, time and place, if any, thereof and the means of
remote communication, if any, by which Members and proxyholders may be deemed to
be present in person and vote at such reconvened meeting are announced at the
meeting at which the adjournment is taken. At the reconvened meeting, the
Members may transact any business that might have been transacted at the
original meeting. A determination of Members of record entitled to notice of or
to vote at a meeting of Members shall apply to any adjournment of such meeting;
provided, however, that the Board of Directors may fix a new record date for the
reconvened meeting. If an adjournment is for more than thirty (30) days or if,
after an adjournment, a new record date is fixed for the reconvened meeting, a
notice of the reconvened meeting shall be given to each Member entitled to vote
at the meeting.
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Section 9.7 Proxies. For so long as the Trust is the sole Member,
actions by Members required to be taken hereunder will be taken by the Trust
pursuant to instructions given to the Trust by the holders of the Trust Stock in
accordance with the Trust Agreement or otherwise pursuant to terms set forth in
the Trust Agreement. At all meetings of Members, a Member may vote by proxy as
may be permitted by law; provided that no proxy shall be voted after three (3)
years from its date, unless the proxy provides for a longer period in accordance
with the Trust Agreement. Any proxy to be used at a meeting of Members must be
filed with the Secretary of the Company or his or her representative at or
before the time of the meeting.
Section 9.8 Notice of Member Business and Nominations.
(a) Annual Meetings of Members.
(i) Except in the case of the Initial Board, nominations of
individuals for election to the Board of Directors of the Company, other than
the Chairman, for so long as the Manager is entitled to appoint the director of
the Board of Directors to serve as Chairman pursuant to the terms of the
Management Services Agreement, and the proposal of business to be considered by
the Members may be made at an annual meeting of Members (A) pursuant to the
Company's notice of meeting delivered pursuant to Section 9.5 of this Agreement,
(B) by or at the direction of the Board of Directors or (C) by any Member of the
Company who is entitled to vote at the meeting, who complied with the notice
procedures set forth in clauses (ii) and (iii) of this Section 9.8(a) and who
was a Member of record at the time such notice is delivered to the Secretary of
the Company.
(ii) For nominations or other business to be properly brought before
an annual meeting by a Member pursuant to clause (C) of paragraph (a)(i) of this
Section 9.8, the Member must have given timely notice thereof in writing to the
Secretary of the Company and, in the case of business other than nominations,
such other business must otherwise be a proper matter for Member action. To be
timely, a Member's notice shall be delivered to the Secretary at the principal
executive offices of the Company not less than ninety (90) days nor more than
one hundred and twenty (120) days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that, in the case of the
first annual meeting of Members of the Company, a Member's notice shall be
timely if it is delivered to the Secretary at the principal executive offices of
the Company not more than ninety (90) days following the end of the Company's
first Fiscal Year; and provided further that, in the event that the date of the
annual meeting is advanced by more than thirty (30) days or delayed by more than
ninety (90) days from such anniversary date, notice by the Member to be timely
must be so delivered not earlier than the one hundred and twentieth (120th) day
prior to such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or the tenth
(10th) day following the day on which public announcement of the date of such
meeting is first made. In no event shall the public announcement or an
adjournment or postponement of an annual meeting commence a new time period for
the giving of a Member's notice as described in this Section 9.8(a).
Subject to Section 9.8(a)(i), such Member's notice shall set forth:
(A) as to each individual whom the Member proposes to nominate for election or
reelection as a director, all information relating to such individual that is
required to be disclosed in solicitations of proxies
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for election of directors in an election contest, or is otherwise required, in
Regulation 14A under the Exchange Act, including such individual's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected; (B) as to any other business that the Member proposes to
bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such Member and the
beneficial owner or holder of Shares of Trust Stock, if any, on whose behalf the
proposal is made; and (C) as to the Member giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (1) the name
and address of such Member as they appear on the Company's books and of such
beneficial owner and (2) the number of LLC Interests of the Company which are
owned beneficially and of record by such Member and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of clause (ii)
of this Section 9.8(a) to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Company is increased
and there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the Company at
least one hundred (100) days prior to the first anniversary of the preceding
year's annual meeting, a Member's notice required by this Section 9.8 shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Company not later than the close of business
on the tenth (10th) day following the day on which such public announcement is
first made by the Company.
(b) Special Meeting of Members. Only such business shall be
conducted at a special meeting of Members as shall have been brought before the
meeting pursuant to the Company's notice of meeting pursuant to Section 9.5 of
this Agreement. Nominations of individuals for election to the Board of
Directors, other than the Chairman, for so long as the Manager is entitled to
appoint the director of the Board of Directors to serve as Chairman pursuant to
the terms of the Management Services Agreement, may be made at a special meeting
of Members at which directors are to be elected pursuant to the Company's notice
of meeting (i) by or at the direction of the Board of Directors or (ii) by any
Member of the Company who is entitled to vote at the meeting who complies with
the notice procedures set forth in this Section 9.8 and who is a Member of
record at the time such notice is delivered to the Secretary of the Company. In
the event the Company calls a special meeting of Members for the purpose of
electing one or more directors to the Board of Directors, any such Member may
nominate such number of individuals for election to such position(s) as are
specified in the Company's Notice of Meeting, if the Member's notice as required
by clause (ii) of Section 9.8(a) of this Agreement shall be delivered to the
Secretary at the principal executive offices of the Company not earlier than the
one hundred and twentieth (120th) day prior to such special meeting and not
later than the close of business on the later of the ninetieth (90th) day prior
to such special meeting or the tenth (10th) day following the day on which
public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment or postponement of a
special meeting commence a new time period for the giving of a Member's notice
as described above.
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(c) General.
(i) Only individuals who are nominated in accordance with the
procedures set forth in this Section 9.8 shall be eligible to be elected as
directors at a meeting of Members and only such business shall be conducted at a
meeting of Members as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 9.8. Except as otherwise provided
by applicable law or this Section 9.8, the Chairman of the Board shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this Section 9.8 and, if any proposed nomination or business is not in
compliance with this Section 9.8, to declare that such defective proposal or
nomination shall be disregarded.
(ii) For purposes of this Section 9.8, "public announcement" shall
mean disclosure in a press release reported by the Dow Xxxxx News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Company with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 9.8,
a Member shall also comply with all applicable requirements of the Exchange Act
and the rules and regulations thereunder with respect to the matters set forth
in this Section 9.8. Nothing in this Section 9.8 shall be deemed to affect any
rights of Members to request inclusion of proposals in the Company's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Section 9.9 Procedure for Election of Directors; Voting. The
election of directors submitted to Members at any meeting shall be decided by a
plurality of the votes cast thereon. Except as otherwise provided by law or this
Agreement, all matters other than the election of directors submitted to the
Members at any meeting shall be decided by the affirmative vote of a majority of
the LLC Interests present in person or represented by proxy at the meeting of
Members.
The vote on any matter at a meeting, including the election of
directors, shall be by written ballot. Each ballot shall be signed by the Member
voting, or by such Member's proxy, and shall state the number of LLC Interests
voted.
Section 9.10 Inspectors of Elections; Opening and Closing the Polls.
(a) If the Trust is not the sole owner of LLC Interests, the Board
of Directors by resolution shall appoint one or more inspectors, which inspector
or inspectors may not be directors, officers or employees of the Company, to act
at the meeting and make a written report thereof. One or more individuals may be
designated as alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate has been so appointed to act, or if all inspectors or
alternates who have been appointed are unable to act, at a meeting of Members,
the Chairman of the Board shall appoint one or more inspectors to act at the
meeting. Each such inspector, before discharging his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by the General Corporation Law of the State of
Delaware as if the Company were a Delaware corporation.
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(b) If the Trust is not the sole owner of LLC Interests, the
Chairman of the Board shall fix and announce at the meeting the date and time of
the opening and the closing of the polls for each matter upon which the Members
will vote at the meeting.
Section 9.11 Confidential Member Voting. If the Trust is not the
sole owner of the LLC Interests, all proxies, ballots and votes, in each case to
the extent they disclose the specific vote of an identified Member, shall be
tabulated and certified by an independent tabulator, inspector of elections
and/or other independent parties and shall not be disclosed to any director,
officer or employee of the Company; provided, however, that, notwithstanding the
foregoing, any and all proxies, ballots and voting tabulations may be disclosed:
(a) as necessary to meet legal requirements or to assist in the pursuit or
defense of legal action; (b) if the Company concludes in good faith that a bona
fide dispute exists as to the authenticity of one or more proxies, ballots or
votes, or as to the accuracy of any tabulation of such proxies, ballots or
votes; (c) in the event of a proxy, consent or other solicitation in opposition
to the voting recommendation of the Board of Directors; and (d) if the Member
requests or consents to disclosure of the Member's vote or writes comments on
the Member's proxy card or ballot.
Section 9.12 Waiver of Notice. Whenever any notice is required to be
given to any Member or director of the Company by the terms of this Agreement, a
waiver thereof in writing, signed by the Person or Persons entitled to such
notice, or a waiver by electronic transmission by the Person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. Neither the business to be transacted at, nor the
purpose of, any annual or special meeting of the Members or any meeting of the
Board of Directors or committee thereof need be specified in any written waiver
of notice or any waiver by electronic transmission of such meeting.
Section 9.13 Remote Communication. For the purposes of this
Agreement, if authorized by the Board of Directors in its sole discretion, and
subject to such guidelines and procedures as the Board of Directors may adopt,
Members and proxyholders may, by means of remote communication:
(a) participate in a meeting of Members; and
(b) be deemed present in person and vote at a meeting of Members
whether such meeting is to be held at a designated place or solely by
means of remote communication,
provided that (i) the Company shall implement reasonable measures to verify that
each Person deemed present and permitted to vote at the meeting by means of
remote communication is a Member or proxyholder, (ii) the Company shall
implement reasonable measures to provide such Members and proxyholders a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the Members, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings, and
(iii) if any Member or proxyholder votes or takes other action at the meeting by
means of remote communication, a record of such vote or other action shall be
maintained by the Company.
Section 9.14 Member Action Without a Meeting.
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(a) Except as otherwise provided by law, this Agreement or the
Certificate, any action required to be taken at any meeting of Members, or any
action that may be taken at any annual or special meeting of such Members, may
be taken without a meeting, without prior notice, and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the Members holding LLC Interests having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all Members were present and voted and shall be delivered to
the Company by delivery to its registered office in the State of Delaware, its
principal place of business or an officer or agent of the Company having custody
of the book or books in which meetings of Members are recorded; provided,
however, that delivery made to the Company's registered office in the State of
Delaware shall be by hand or by certified mail, return receipt requested. Prompt
notice of the taking of action without a meeting by less than unanimous written
consent shall be given to those Members who have not consented in writing and
who, if the action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been the date that
written consents signed, by a sufficient number of the Members to take the
action, were delivered to the Company.
(b) A telegram, cablegram or other electronic transmission
consenting to an action to be taken and transmitted by a Member or proxyholder,
or by a Person or Persons authorized to act for a Member or proxyholder, shall
be deemed to be written, signed and dated for the purposes of this Agreement,
provided that any such telegram, cablegram or other electronic transmission sets
forth or is delivered with information from which the Company can determine (i)
that the telegram, cablegram or other electronic transmission was transmitted by
the Member or proxyholder or by a Person or Persons authorized to act for the
Member or proxyholder and (ii) the date on which such Member or proxyholder or
authorized Person or Persons transmitted such telegram, cablegram or electronic
transmission. Any consent by means of telegram, cablegram or other electronic
transmission shall be deemed to have been signed on the date on which such
telegram, cablegram or electronic transmission was transmitted. No consent given
by telegram, cablegram or other electronic transmission shall be deemed to have
been delivered until such consent is reproduced in paper form and until such
paper form shall be delivered to the Company by delivery to its registered
office in the State of Delaware, its principal place of business or an officer
or agent of the Company having custody of the book in which proceedings of
meetings are recorded. Delivery made to a Company's registered office shall be
made by hand or by certified or registered mail, return receipt requested.
Notwithstanding the foregoing limitations on delivery, consents given by
telegram, cablegram, or other electronic transmission may be otherwise delivered
to the principal place of business of the Company or to an officer or agent of
the Company having custody of the book in which proceedings of meetings of
stockholders are recorded if, to the extent, and in the manner provided by
resolution of the Board of Directors of the Company.
(c) Any copy, facsimile or other reliable reproduction of a consent
in writing (or reproduction in paper form of a consent by telegram, cablegram,
or electronic transmission) may be substituted or used in lieu of the original
writing (or original reproduction in paper form of a consent by telegram,
cablegram, or electronic transmission) for any and all purposes for which the
original consent could be used, provided that such copy, facsimile or other
reproduction shall be a complete reproduction of the entire original writing (or
original reproduction in paper form of a consent by telegram, cablegram, or
electronic transmission).
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(d) In order to determine the Members entitled to consent to action
in writing without a meeting, the Board of Directors may fix a record date. Such
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted
by the Board of Directions. If no record date has been fixed by the Board of
Directors, the record date for determining Members entitled to consent to action
in writing without a meeting, when no prior action of the Board of Directors is
required by applicable law, the Certificate or this Agreement, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Company in the manner set forth in
subsections (a) and (b) of this Section 9.14. If no record date has been fixed
by the Board of Directors and prior action of the Board of Directors is required
by applicable law, the Certificate or this Agreement, the record date for
determining Members entitled to consent to action in writing without a meeting
shall be the close of business on the day on which the Board of Directors adopts
the resolution taking such prior action.
Section 9.15 Return on Capital Contribution. Except as otherwise
provided in Section 13 hereof, no Member shall demand or receive a return on or
of its Capital Contributions or withdraw from the Company.
Section 9.16 Member Compensation. No Member shall receive any
interest, salary or drawing with respect to its Capital Contributions or its
Capital Account or for services rendered on behalf of the Company, or otherwise,
in its capacity as a Member, except as otherwise provided in this Agreement.
Section 9.17 Member Liability. No Member shall be liable under a
judgment, decree or order of a court, or in any other manner, for the Debts or
any other obligations or liabilities of the Company. A Member shall be liable
only to make its Capital Contributions and shall not be required to restore a
deficit balance in its Capital Account or to lend any funds to the Company or,
after its Capital Contributions have been made, to make any additional
contributions, assessments or payments to the Company, provided that a Member
may be required to repay dividend or other distributions made to it as provided
in Section 5.3 hereof or Section 18-607 of the Act. The Manager shall not have
any personal liability for the repayment of any Capital Contributions of any
Member.
ARTICLE 10
ACCOUNTING, BOOKS AND RECORDS
Section 10.1 Accounting, Books and Records. The Company, other than
as provided in the Management Services Agreement, shall keep or cause to be kept
at its principal office appropriate books and records with respect to the
Company's business, including, without limitation, all books and records
necessary to provide to the Members any information, lists and copies of
documents required to be provided pursuant to applicable law. Any books and
records maintained by or on behalf of the Company in the regular course of its
business, including, without limitation, the record of the Members, books of
account and records of Company proceedings, may be kept in electronic or any
other form, provided that the books and records so maintained are convertible
into clearly legible written form within a reasonable period of time.
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The books of the Company shall be maintained, for financial reporting purposes,
on an accrual basis in accordance with GAAP.
Section 10.2 Reports.
(a) In General. The Chief Financial Officer of the Company shall be
responsible for causing the preparation of financial reports of the Company and
the coordination of financial matters of the Company with the Company's
accountants.
(b) Periodic and Other Reports. The Company shall cause to be
delivered to each Member the financial statements listed in clauses (i) and (ii)
below, prepared in each case (other than with respect to Members' Capital
Accounts, which shall be prepared in accordance with this Agreement) in
accordance with GAAP consistently applied (and, if required by any Member or its
Controlled Affiliates for purposes of reporting thereunder, Regulation S-X of
the Exchange Act). The monthly and quarterly financial statements referred to in
clause (ii) below may be subject to normal year-end audit adjustments.
(i) As soon as practicable following the end of each Fiscal Year
(and in any event not later than the date on which the Rules and
Regulations provide) and at such time as distributions are made to the
Members pursuant to Article 13 hereof following the occurrence of a
Dissolution Event, a balance sheet of the Company as of the end of such
Fiscal Year and the related statements of operations, Members' Capital
Accounts and changes therein, and cash flows for such Fiscal Year,
together with appropriate notes to such financial statements and
supporting schedules, all of which shall be audited and certified by the
Company's accountants, and in each case, to the extent the Company was in
existence, setting forth in comparative form the corresponding figures for
the immediately preceding Fiscal Year end (in the case of the balance
sheet) and the two (2) immediately preceding Fiscal Years (in the case of
the statements); and
(ii) As soon as practicable following the end of each of the first
three Fiscal Quarters of each Fiscal Year (and in any event not later than
the date on which the Rules and Regulations require), a balance sheet of
the Company as of the end of such Fiscal Quarter and the related
statements of operations and cash flows for such Fiscal Quarter and for
the Fiscal Year to date, in each case, to the extent the Company was in
existence, setting forth in comparative form the corresponding figures for
the prior Fiscal Year's Fiscal Quarter and the interim period
corresponding to the Fiscal Quarter and the interim period just completed.
The quarterly or monthly statements described in clause (ii) above
shall be accompanied by such written certifications as the Rules and Regulations
require.
Section 10.3 Tax Matters.
(a) Preparation of Tax Returns. The Company on behalf of the Trust
shall arrange for the preparation and timely filing of all returns of Company
income, gains, deductions, losses and other items required of the Company for
U.S. federal and state income tax purposes. The classification, realization and
recognition of income, gains, deductions, losses and
38
other items shall be on the accrual method of accounting for U.S. federal income
tax purposes. The taxable year of the Company shall be the calendar year.
(b) Tax Elections. The Board of Directors shall, without any further
consent of the Members being required (except as specifically required herein),
make (i) the election to adjust the basis of Property pursuant to Code Sections
754, 734(b) and 743(b), or comparable provisions of state, local or foreign law,
in connection with Transfers of LLC Interests and Company dividend or other
distributions; and (ii) any and all other elections for U.S. federal, state,
local and foreign tax purposes, including, without limitation, any election, if
permitted by applicable law: (x) to extend the statute of limitations for
assessment of tax deficiencies against the Members with respect to adjustments
to the Company's U.S. federal, state, local or foreign tax returns; and (y) to
the extent provided in Code Sections 6221 through 6231 and similar provisions of
U.S. federal, state, local or foreign law, to represent the Company and the
Members before taxing authorities or courts of competent jurisdiction in tax
matters affecting the Company or the Members in their capacities as Members, and
to file any tax returns and execute any agreements or other documents relating
to or affecting such tax matters, including agreements or other documents that
bind the Members with respect to such tax matters or otherwise affect the rights
of the Company and the Members. Macquarie Infrastructure Management (USA) Inc.
is specifically authorized to act as the "TAX MATTERS MEMBER" under the Code and
in any similar capacity under state or local law.
ARTICLE 11
AMENDMENTS
Section 11.1 Amendments. The Board of Directors is authorized to
amend the terms of this Agreement at any meeting of the Board of Directors by
the affirmative vote of a majority of the number of directors then in office or
by consent in accordance with Section 6.13; provided, however, that Sections
1.3, 2.3, 2.4, 3.2, 3.3, 6.21 and 8.2 may not be amended without the affirmative
vote of a majority of the LLC Interests present in person or represented by
proxy at the meeting of Members.
ARTICLE 12
TRANSFERS
Section 12.1 Distributions and Allocations in Respect of Transferred
LLC Interests. If any LLC Interests are Transferred during any Allocation Year,
Profits, Losses, each item thereof and all other items attributable to the
Transferred LLC Interests for such Allocation Year shall, for U.S. federal
income tax purposes, be determined on an annual basis and prorated on a monthly
basis and the pro rata portion for each month shall be allocated to those
Persons who are Members as of the close of the New York Stock Exchange on the
last day of the preceding month. All dividend or other distributions on or
before the date of such Transfer shall be made to the transferor, and all
dividend or other distributions thereafter shall be made to the transferee. The
Board of Directors may revise, alter or otherwise modify such methods of
39
allocation as it determines necessary, to the extent permitted or required by
Code Section 706 and the Regulations or rulings promulgated thereunder.
ARTICLE 13
DISSOLUTION AND WINDING-UP
Section 13.1 Dissolution Events.
(a) Dissolution. The Company shall dissolve and shall commence
winding up and liquidating upon the first to occur of any of the following (each
a "DISSOLUTION EVENT"):
(i) The unanimous vote of the Members to dissolve, wind up and
liquidate the Company; or
(ii) A judicial determination that an event has occurred that makes
it unlawful, impossible or impractical to carry on the business of the
Company as then currently operated.
The Members hereby agree that, notwithstanding any provision of the Act, the
Company shall not dissolve prior to the occurrence of a Dissolution Event.
(b) Reconstitution. If it is determined by a court of competent
jurisdiction that the Company has dissolved prior to the occurrence of a
Dissolution Event, then, within an additional ninety (90) days after such
determination (the "RECONSTITUTION PERIOD"), all of the Members may elect to
reconstitute the Company and continue its business on the same terms and
conditions set forth in this Agreement by forming a new limited liability
company on terms identical to those set forth in this Agreement. Unless such an
election is made within the Reconstitution Period, the Company shall liquidate
and wind up its affairs in accordance with Section 13.2 hereof. If such an
election is made within the Reconstitution Period, then:
(i) The reconstituted limited liability company shall continue until
the occurrence of a Dissolution Event as provided in Section 13.1(a); and
(ii) Unless otherwise agreed to by a majority of the Members, the
Certificate and this Agreement shall automatically constitute the
Certificate and Agreement of such new Company. All of the assets and
liabilities of the dissolved Company shall be deemed to have been
automatically assigned, assumed, conveyed and transferred to the new
Company. No bond, collateral, assumption or release of any Member's or the
Company's liabilities shall be required;
provided that the right of the Members to select replacement managers and to
reconstitute and continue the business shall not exist and may not be exercised
unless the Company has received an opinion of counsel that the exercise of such
right would not result in the loss of limited liability of any Member and
neither the Company nor the reconstituted limited liability company would cease
to be treated as a partnership for U.S. federal income tax purposes upon the
exercise of such right to continue.
40
Section 13.2 Winding-Up. Upon the occurrence of (i) a Dissolution
Event or (ii) the determination by a court of competent jurisdiction that the
Company has dissolved prior to the occurrence of a Dissolution Event (unless the
Company is reconstituted pursuant to Section 13.1(b) hereof), the Company shall
continue solely for the purposes of winding up its affairs in an orderly manner,
liquidating its assets, and satisfying the claims of its creditors and Members,
and no Member shall take any action that is inconsistent with, or not necessary
to or appropriate for, the winding-up of the Company's business and affairs,
provided that all covenants contained in this Agreement and obligations provided
for in this Agreement shall continue to be fully binding upon the Members until
such time as the Property has been distributed pursuant to this Section 13.2 and
the Certificate has been canceled pursuant to the Act. The Liquidator shall be
responsible for overseeing the winding-up and dissolution of the Company, which
winding-up and dissolution shall be completed within ninety (90) days of the
occurrence of the Dissolution Event and within ninety (90) days after the last
day on which the Company may be reconstituted pursuant to Section 13.1(b)
hereof. The Liquidator shall take full account of the Company's liabilities and
Property and shall cause the Property or the proceeds from the sale thereof (as
determined pursuant to Section 13.9 hereof), to the extent sufficient therefor,
to be applied and distributed, to the maximum extent permitted by law, in the
following order:
(a) First, to creditors (including the Manager and the Members who
are creditors, to the extent otherwise permitted by law) in satisfaction
of all of the Company's Debts and other liabilities (whether by payment or
the making of reasonable provision for payment thereof), other than
liabilities for which reasonable provision for payment has been made and
liabilities for distribution to Members under Section 18-601 or 18-604 of
the Act;
(b) Second, except as provided in this Agreement, to Members and
former Members of the Company in satisfaction of liabilities for
distribution under Section 18-601 or 18-604 of the Act; and
(c) The balance, if any, to the Members in accordance with the
positive balance in their Capital Accounts, after giving effect to all
contributions, distributions and allocations for all periods.
No Member or Manager shall receive additional compensation for any services
performed pursuant to this Article 13.
Section 13.3 Compliance with Certain Requirements of Regulations;
Deficit Capital Accounts. In the event the Company is "liquidated" within the
meaning of Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made
pursuant to this Article 13 to the Members who have positive Capital Accounts in
compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(2). If any Member has a
deficit balance in its Capital Account (after giving effect to all
contributions, distributions and allocations for all Allocation Years, including
the Allocation Year during which such liquidation occurs), such Member shall
have no obligation to make any contribution to the capital of the Company with
respect to such deficit, and such deficit shall not be considered a debt owed to
the Company or to any other Person for any purpose
41
whatsoever. In the discretion of the Liquidator, a pro rata portion of the
distributions that would otherwise be made to the Members pursuant to this
Article 13 may be:
(a) Distributed to a trust established for the benefit of the
Members for the purposes of liquidating Company assets, collecting amounts
owed to the Company, and paying any contingent or unforeseen liabilities
or obligations of the Company. The assets of any such trust shall be
distributed to the Members from time to time, in the reasonable discretion
of the Liquidator, in the same proportions as the amount distributed to
such trust by the Company would otherwise have been distributed to the
Members pursuant to Section 13.2 hereof; or
(b) Withheld to provide a reasonable reserve for Company liabilities
(contingent or otherwise) and to reflect the unrealized portion of any
installment obligations owed to the Company, provided that such withheld
amounts shall be distributed to the Members as soon as practicable.
Section 13.4 Deemed Distribution and Recontribution. Notwithstanding
any other provision of this Article 13, in the event the Company is liquidated
within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) but no
Dissolution Event has occurred, the Property shall not be liquidated, the
Company's Debts and other Liabilities shall not be paid or discharged, and the
Company's affairs shall not be wound up. Instead, solely for U.S. federal income
tax purposes, the Company shall be deemed to have contributed all its Property
and liabilities to a new limited liability company in exchange for an interest
in such new company and, immediately thereafter, the Company will be deemed to
liquidate by distributing interests in the new company to the Members.
Section 13.5 Rights of Members. Except as otherwise provided in this
Agreement, each Member shall look solely to the Property of the Company for the
return of its Capital Contribution and has no right or power to demand or
receive Property other than cash from the Company. If the assets of the Company
remaining after payment or discharge of the debts or liabilities of the Company
are insufficient to return such Capital Contribution, the Members shall have no
recourse against the Company or any other Member or the Manager.
Section 13.6 Notice of Dissolution/Termination.
(a) In the event a Dissolution Event occurs or an event occurs that
would, but for the provisions of Section 13.1, result in a dissolution of the
Company, the Board of Directors shall, within thirty (30) days thereafter,
provide written notice thereof to each of the Members and to all other parties
with whom the Company regularly conducts business (as determined in the
discretion of the Board of Directors) and shall publish notice thereof in a
newspaper of general circulation in each place in which the Company regularly
conducts business (as determined in the discretion of the Board of Directors).
(b) Upon completion of the distribution of the Company's Property as
provided in this Article 13, the Company shall be terminated, and the Board of
Directors shall cause the filing of the Certificate of Cancellation pursuant to
Section 18-203 of the Act and shall take all such other actions as may be
necessary to terminate the Company.
42
Section 13.7 Allocations During Period of Liquidation. During the
period commencing on the first day of the Fiscal Year during which a Dissolution
Event occurs and ending on the date on which all of the assets of the Company
have been distributed to the Members pursuant to Section 13.2 hereof (the
"LIQUIDATION PERIOD"), the Members shall continue to share Profits, Losses,
gain, loss and other items of Company income, gain, loss or deduction in the
manner provided in Article 4 hereof.
Section 13.8 Character of Liquidating Distributions. All payments
made in liquidation of the interest of a Member in the Company shall be made in
exchange for the interest of such Member in Property pursuant to Section
736(b)(1) of the Code, including the interest of such Member in Company
goodwill.
Section 13.9 The Liquidator.
(a) Definition. The "LIQUIDATOR" shall mean a Person appointed by
the Board of Directors to oversee the liquidation of the Company.
(b) Fees. The Company is authorized to pay a reasonable fee to the
Liquidator for its services performed pursuant to this Article 13 and to
reimburse the Liquidator for its reasonable costs and expenses incurred in
performing those services.
(c) Indemnification. The Company shall indemnify, hold harmless and
pay all judgments and claims against the Liquidator or any officers, directors,
agents or employees of the Liquidator relating to any liability or damage
incurred by reason of any act performed or omitted to be performed by the
Liquidator or any officers, directors, agents or employees of the Liquidator in
connection with the liquidation of the Company, including reasonable attorneys'
fees incurred by the Liquidator, officer, director, agent or employee in
connection with the defense of any action based on any such act or omission,
which attorneys' fees may be paid as incurred, except to the extent such
liability or damage is caused by the fraud or intentional misconduct of, or a
knowing violation of the laws by, the Liquidator which was material to the cause
of action.
Section 13.10 Form of Liquidating Distributions. For purposes of
making distributions required by Section 13.2 hereof, the Liquidator may
determine whether to distribute all or any portion of the Property in kind or to
sell all or any portion of the Property and distribute the proceeds therefrom.
ARTICLE 14
MISCELLANEOUS
Section 14.1 Notices. Any notice, payment, demand or communication
required or permitted to be given by any provision of this Agreement shall be in
writing and shall be deemed to have been delivered, given and received for all
purposes (i) if delivered personally to the Person or to an officer of the
Person to whom the same is directed, or (ii) when the same is actually received,
if sent either by registered or certified mail, postage and charges prepaid, or
by facsimile, if such facsimile is followed by a hard copy of the facsimile
communication sent
43
promptly thereafter by registered or certified mail, postage and charges
prepaid, addressed as follows, or to such other address as such Person may from
time to time specify by notice to the Members and the Manager:
(a) If to the Company:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000;
(b) If to the Manager:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000; and
(c) If to the Trust:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000.
Section 14.2 Binding Effect. Except as otherwise provided in this
Agreement, every covenant, term and provision of this Agreement shall be binding
upon and inure to the benefit of the Members and their respective successors,
transferees and assigns.
Section 14.3 Construction. Every covenant, term and provision of
this Agreement shall be construed simply according to its fair meaning and not
strictly for or against any Member.
Section 14.4 Time. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated period
of time begins to run shall not be included, but the time shall begin to run on
the next succeeding day. The last day of the period so computed shall be
included, unless it is a Saturday, Sunday or legal holiday, in which event the
period shall run until the end of the next day which is not a Saturday, Sunday
or legal holiday.
Section 14.5 Headings. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
Section 14.6 Severability. Except as otherwise provided in the
succeeding sentence, every provision of this Agreement is intended to be
severable, and, if any term or provision of this Agreement is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
validity or legality of the remainder of this Agreement. The
44
preceding sentence of this Section 14.6 shall be of no force or effect if the
consequence of enforcing the remainder of this Agreement without such illegal or
invalid term or provision would be to cause any Member to lose the material
benefit of its economic bargain.
Section 14.7 Incorporation by Reference. Every exhibit, schedule and
other appendix attached to this Agreement and referred to herein is not
incorporated in this Agreement by reference unless this Agreement expressly
otherwise provides.
Section 14.8 Variation of Terms. All terms and any variations
thereof shall be deemed to refer to masculine, feminine or neuter, singular or
plural, as the identity of the Person or Persons may require.
Section 14.9 Governing Law and Consent to Jurisdiction/Service of
Process. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights
and duties arising hereunder.
Each party hereto and any Person acquiring an LLC Interest, from
time to time, (i) irrevocably submits to the non-exclusive jurisdiction and
venue of any Delaware State court or U.S. federal court sitting in Wilmington,
Delaware in any action arising out of this Operating Agreement and (ii) consents
to the service of process by mail. Nothing herein shall affect the right of any
party to serve legal process in any manner permitted by law or affect its right
to bring any action in any other court.
Section 14.10 Waiver of Jury Trial. Each of the Members irrevocably
waives, to the extent permitted by law, all rights to trial by jury and all
rights to immunity by sovereignty or otherwise in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
Section 14.11 Counterpart Execution. This Agreement may be executed
in any number of counterparts with the same effect as if all of the Members had
signed the same document. All counterparts shall be construed together and shall
constitute one agreement.
Section 14.12 Specific Performance. Each Member agrees with the
other Members that the other Members would be irreparably damaged if any of the
provisions of this Agreement were not performed in accordance with their
specific terms and that monetary damages would not provide an adequate remedy in
such event. Accordingly, it is agreed that, in addition to any other remedy to
which the nonbreaching Members may be entitled, at law or in equity, the
nonbreaching Members shall be entitled to injunctive relief to prevent breaches
of the provisions of this Agreement and specifically to enforce the terms and
provisions hereof in any action instituted in any court of the United States or
any state thereof having subject matter jurisdiction thereof.
45
IN WITNESS WHEREOF, the Original Member has executed and entered
into this Operating Agreement of the Company as of the day first above set
forth.
MACQUARIE INFRASTRUCTURE ASSETS TRUST
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Regular Trustee
46
EXHIBIT A
SPECIMEN LLC INTEREST CERTIFICATE
A-1
NUMBER____ ORGANIZED UNDER THE LAWS ______LLC
OF INTERESTS
THE STATE OF DELAWARE
MACQUARIE INFRASTRUCTURE ASSETS LLC
This Certifies that _________________________ is the owner of ___ LLC
Interests of the Company with such rights and privileges as are set forth in the
Operating Agreement of the Company dated _______________ (the "Operating
Agreement"), as it may be amended from time to time.
THE LLC INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), THE SECURITIES
LAWS OF ANY STATE (THE "STATE ACTS") OR THE SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE LLC INTERESTS
HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION,
BY ANY STATE SECURITIES COMMISSION OR BY ANY OTHER REGULATORY AUTHORITY OF ANY
OTHER JURISDICTION. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
NEITHER THE LLC INTERESTS NOR ANY PART THEREOF MAY BE OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT (A) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN A TRANSACTION
WHICH IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR FOR WHICH SUCH
REGISTRATION IS OTHERWISE NOT REQUIRED AND (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER ANY APPLICABLE STATE ACTS OR IN A TRANSACTION WHICH
IS EXEMPT FROM REGISTRATION UNDER SUCH STATE ACTS OR FOR WHICH SUCH REGISTRATION
OTHERWISE IS NOT REQUIRED.
THE LLC INTERESTS REPRESENTED BY THIS CERTIFICATE EVIDENCE THE PROPORTIONATE
PORTION OF SUCH HOLDER'S LIMITED LIABILITY COMPANY INTEREST IN THE COMPANY. THE
LLC INTERESTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TRANSFER
RESTRICTIONS CONTAINED IN SECTION 12 OF THE OPERATING AGREEMENT OF THE COMPANY.
EVERY HOLDER OF THIS CERTIFICATE, BY HOLDING AND RECEIVING THE SAME, AGREES WITH
THE COMPANY TO BE BOUND BY THE TERMS OF THE OPERATING AGREEMENT OF THE COMPANY.
A STATEMENT OF THE RELATIVE RIGHTS AND PREFERENCES OF THE COMPANY'S LLC
INTERESTS WILL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON REQUEST
WITHOUT CHARGE.
THERE IS CURRENTLY NO PUBLIC MARKET FOR THE LLC INTERESTS. THEREFORE, RECIPIENTS
OF LLC INTERESTS WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
In Witness Whereof, said Company has caused this Certificate to be signed
by its Chief Executive Officer this ____ day of ______, A.D. ____.
__________________________
AS CHIEF EXECUTIVE OFFICER
