Exhibit 3.3
FORM OF
AMENDED AND RESTATED TRUST AGREEMENT
OF
MACQUARIE INFRASTRUCTURE COMPANY TRUST
AMONG
MACQUARIE INFRASTRUCTURE COMPANY LLC
as Sponsor,
XXXXX FARGO DELAWARE TRUST COMPANY
as Delaware Trustee,
AND
THE REGULAR TRUSTEE NAMED HEREIN
Dated as of -, 2004
TABLE OF CONTENTS
Page(s)
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ARTICLE I DEFINED TERMS............................................................................. 1
Section 1.01 Definitions................................................................. 1
ARTICLE II ESTABLISHMENT OF THE TRUST............................................................... 6
Section 2.01 Name........................................................................ 6
Section 2.02 Office of the Delaware Trustee; Principal Place of Business................. 6
Section 2.03 Initial Issuance of Shares.................................................. 6
Section 2.04 Trust to Be Sole Member of Sponsor.......................................... 7
Section 2.05 Authorized Shares........................................................... 7
Section 2.06 Issuance of Additional Shares............................................... 7
Section 2.07 Repurchase of Shares at Direction of the Sponsor............................ 7
Section 2.08 Agreement of Trust.......................................................... 7
Section 2.09 Authorization to Enter into Certain Transactions............................ 8
Section 2.10 Title to Trust Property..................................................... 9
Section 2.11 Certain Covenants of the Sponsor............................................ 9
ARTICLE III DIVIDENDS AND DISTRIBUTIONS............................................................. 9
Section 3.01 Dividends................................................................... 9
Section 3.02 Payment Procedures.......................................................... 9
Section 3.03 Tax Returns and Reports..................................................... 10
ARTICLE IV SHARE CERTIFICATES ...................................................................... 10
Section 4.01 Initial Ownership........................................................... 10
Section 4.02 Share Certificates.......................................................... 10
Section 4.03 Share Register.............................................................. 11
Section 4.04 Transfer of Shares.......................................................... 11
Section 4.05 Mutilated, Lost, Destroyed or Stolen Share Certificates..................... 11
Section 4.06 Rights of Shareholders...................................................... 11
ARTICLE V MEETINGS; VOTING ......................................................................... 12
Section 5.01 Annual Meetings of Shareholders............................................. 12
Section 5.02 Special Meetings of Shareholders............................................ 12
Section 5.03 Place of Meeting............................................................ 12
Section 5.04 Notice of Meeting........................................................... 12
Section 5.05 Quorum and Adjournment...................................................... 13
Section 5.06 Voting...................................................................... 14
Section 5.07 Proxies..................................................................... 14
Section 5.08 Notice of Shareholder Business and Nominations.............................. 14
Section 5.09 Procedure for Election of Directors; Voting................................. 17
Section 5.10 Inspectors of Elections; Opening and Closing the Polls...................... 17
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Section 5.11 Confidential Shareholder Voting............................................. 17
Section 5.12 Waiver of Notice............................................................ 18
Section 5.13 Remote Communication........................................................ 18
Section 5.14 Inspection of Records....................................................... 18
ARTICLE VI DISCLOSURE REQUIREMENTS FOR 10% SHAREHOLDERS............................................. 19
ARTICLE VII RIGHT OF SHAREHOLDERS TO ENFORCE PROVISIONS OF SPONSOR AGREEMENTS AND BRING DERIVATIVE
ACTION................................................................................... 20
ARTICLE VIII SHAREHOLDER VOTE REQUIRED IN CONNECTION WITH CERTAIN BUSINESS COMBINATIONS OR
TRANSACTIONS [to be conformed to llc agreement].......................................... 20
Section 8.01 Vote Generally Required..................................................... 20
Section 8.02 Vote for Business Combinations.............................................. 23
Section 8.03 Power of Continuing Directors............................................... 23
Section 8.04 No Effect on Fiduciary Obligations.......................................... 23
Section 8.05 Miscellaneous............................................................... 23
ARTICLE IX THE TRUSTEES............................................................................. 24
Section 9.01 Certain Duties and Responsibilities......................................... 24
Section 9.02 Not Responsible for Recitals or Issuance of Shares.......................... 26
Section 9.03 May Hold Shares............................................................. 26
Section 9.04 Compensation; Indemnity; Fees............................................... 26
Section 9.05 Delaware Trustee Required; Eligibility of Trustees.......................... 26
Section 9.06 Resignation and Removal; Appointment of Successor........................... 27
Section 9.07 Acceptance of Appointment by Successor...................................... 28
Section 9.08 Merger, Conversion, Consolidation or Succession to Business................. 28
Section 9.09 Number of Trustees.......................................................... 28
Section 9.10 Delegation of Power......................................................... 28
Section 9.11 Appointment of Regular Trustees............................................. 29
ARTICLE X TERMINATION AND DISSOLUTION............................................................... 29
Section 10.01 Termination or Dissolution.................................................. 29
Section 10.02 Circumstances Under Which Shares Will Be Exchanged for Sponsor Shares....... 29
Section 10.03 Right to Acquisition Exchange............................................... 30
Section 10.04 Early Termination........................................................... 30
Section 10.05 Termination of Obligations.................................................. 30
ARTICLE XI MISCELLANEOUS PROVISIONS................................................................. 31
Section 11.01 Limitation of Rights of Shareholders........................................ 31
Section 11.02 Amendment................................................................... 31
Section 11.03 Separability................................................................ 31
Section 11.04 Specific Performance........................................................ 31
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Section 11.05 Governing Law............................................................... 32
Section 11.06 Successors.................................................................. 32
Section 11.07 Headings.................................................................... 32
Section 11.08 Reports, Notices and Demands................................................ 32
Section 11.09 Counterparts................................................................ 33
EXHIBITS
Exhibit A - Specimen Share Certificate............................................................... A-1
Exhibit B - Form of Economic Disclosure Statement and Affidavit...................................... B-1
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of -, 2004 among (i)
Macquarie Infrastructure Company LLC, a Delaware limited liability company (the
"Sponsor"), (ii) Xxxxx Fargo Delaware Trust Company, a Delaware banking
corporation, as Delaware trustee (in such capacity, the "Delaware Trustee"), and
(iii) Xxxxx Xxxxxx, an individual, whose address is c/o Macquarie Infrastructure
Company LLC, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Regular Trustee" and, collectively with the Delaware Trustee, the "Trustees").
The Sponsor and the Trustees hereby agree as follows:
WITNESSETH:
WHEREAS, the Sponsor, the Delaware Trustee and Xxxxx Xxxxxx and
Xxxxxxx Xxxx, (the then "Regular Trustees"), heretofore duly declared and
established a statutory trust pursuant to the Delaware Statutory Trust Act by
entering into a trust agreement, dated as of April 13, 2004 (the "Original
Agreement"), and by executing and filing of a certificate of trust with the
Secretary of State of the State of Delaware on April 13, 2004, for the purpose
of owning the Sponsor Shares and issuing Shares (as defined herein) of stock of
the Trust (as defined herein), each Share representing an undivided beneficial
interest in one underlying Sponsor Share (as defined herein);
WHEREAS, the Sponsor and the Trustees desire to amend and restate
the Original Agreement in its entirety as set forth herein to provide for, among
other things, the operation of the Trust;
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each party, for the benefit of the other party,
hereby amends and restates the Original Agreement in its entirety and agrees as
follows:
ARTICLE I
DEFINED TERMS
Section 1.01 Definitions
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) unless the context otherwise requires, any reference to an
"Article," "Section" or an "Exhibit" refers to an Article, Section or an
Exhibit, as the case may be, of this Agreement; and
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Acquirer" has the meaning specified in Section 10.03(a).
"Acquisition Exchange" has the meaning specified in Section
10.03(a).
"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, manager or trustee of
such Person or (iii) any Person who is an officer, director, general partner,
manager 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, trustees or Persons
exercising similar authority with respect to such Person or entity.
"Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto.
"Associate" has the meaning set forth in Section 8.01 hereof.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Beneficial Holder" has the meaning ascribed to such term in Rule
13d-3 of the rules promulgated under the Exchange Act.
"Board" or "Board of Directors" means either the board of directors
of the Sponsor or any committee of such Board duly authorized to act hereunder,
as applicable.
"Business Day" means a day of the year on which banks are not
required or authorized by law or executive order to close in The City of New
York.
"Chairman" means the director appointed or nominated and elected, as
the case may be, Chairman of the Board of Directors, in accordance with the
terms of the Sponsor Agreement with such powers and duties as are set forth in
the Sponsor Agreement.
"Closing Price" has the meaning specified in Section 10.03(b).
"Commission" means the Securities and Exchange Commission.
"Delaware Statutory Trust Act" means chapter 38 of title 12 of the
Delaware Code, 12 Del. C. Section 3801 et seq., as it may be amended from time
to time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Agreement solely in its capacity as Delaware
Trustee of the Trust continued hereunder and not in its individual capacity, or
its successor in interest in such capacity, or any successor Delaware Trustee
appointed as herein provided.
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"Dividends" means amounts payable in respect of the Shares as
provided in Section 3.01.
"Early Termination Event" has the meaning specified in Section
10.04.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" has the meaning set forth in Section 8.01
hereof.
"Fiscal Quarter" means (i) the period commencing on April 13, 2004
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, or (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 the trust is terminated or dissolved in
accordance with Article X of this Agreement.
"Fiscal Year" means (i) the period commencing April 13, 2004 and
ending on December 31, 2004, (ii) any subsequent twelve (12)-month period
commencing on January 1 and ending on December 31, or (iii) the period
commencing on the immediately preceding January 1 and ending on the date on
which the Trust is terminated or dissolved in accordance with Article X of this
Agreement.
"Future Investment" has the meaning set forth in Section 8.01
hereof.
"GAAP" means generally accepted accounting principles in effect in
the United States of America from time to time.
"Initial Board" has the meaning specified in the Sponsor Agreement.
"Interested Shareholder" has the meaning set forth in Section 8.01
hereof.
"Limited Liability Company 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).
"Managed Subsidiary" has the meaning set forth in Section 8.01
hereof.
"Management Services Agreement" means the Management Services
Agreement, as may be amended from time to time, to be entered into by and among
the Sponsor, certain wholly owned Subsidiaries of the Sponsor, and the Manager,
which will provide the terms on which the Manager will assume its duties with
respect to the management of the Sponsor and its Subsidiaries.
"Manager" means Macquarie Infrastructure Management (USA) Inc.,
party to the Management Services Agreement.
"Mandatory Exchange" has the meaning specified in Section 10.02.
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"Market Value of the Trust Stock" has the meaning set forth in
Section 8.01 hereof.
"Member" of the Sponsor means the Trust and any successor to the
Trust in accordance with the terms of this Agreement and the Sponsor Agreement.
"Members" means all such Persons.
"Net Investment Value" has the meaning set forth in Section 8.01
hereof.
"1940 Act" means the Investment Company Act of 1940, as amended.
"1933 Act Registration Statement" has the meaning specified in
Section 2.09(a).
"1934 Act Registration Statement" has the meaning specified in
Section 2.09(a).
"Offer Price" has the meaning specified in Section 10.03(b).
"Original Agreement" has the meaning specified in the recitals to
this Agreement.
"Outstanding Shares," when used with respect to Shares, means, as of
the date of determination, all Shares theretofore executed and delivered under
this Agreement, except:
(a) Shares theretofore canceled or delivered for cancelation; and
(b) Shares in exchange for or in lieu of which other Shares have
been executed and delivered pursuant to Section 4.05.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency or political subdivision thereof or any other entity.
"Property" means all real and personal property acquired by the
Trust, including cash, and any improvements thereto, and shall include both
tangible and intangible property.
"Regular Trustee" means Xxxxx Xxxxxx in his capacity as Regular
Trustee of the Trust continued hereunder and not in his individual capacity, or
such Regular Trustee's successor in interest in such capacity, or any successor
in interest in such capacity, or any successor Regular Trustee appointed as
herein provided.
"Relevant Trustee" has the meaning specified in Section 9.06(a).
"Rules and Regulations" means the rules and regulations promulgated
under the Exchange Act or the Securities Act.
"Secretary" means the Secretary of the Sponsor with such powers and
duties as set forth in the Sponsor Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
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"Share" means a beneficial interest issued by the Trust representing
an undivided beneficial interest in one underlying Sponsor Share owned by the
Trust.
"Share Certificate" means a certificate evidencing ownership of
Shares, substantially in the form attached hereto as Exhibit A.
"Share Register" has the meaning specified in Section 4.03.
"Shareholder" means a Person in whose name a Share Certificate
representing a Share is registered, such Person being a beneficial owner within
the meaning of the Delaware Statutory Trust Act.
"Sponsor" has the meaning specified in the preamble to this
Agreement.
"Sponsor Agreement" means the Amended & Restated Operating Agreement
of the Sponsor, including all exhibits and schedules attached thereto, as
amended from time to time.
"Sponsor Share" means a limited liability company interest in the
Sponsor within the meaning of the Delaware Limited Liability Company Act, 6 Del.
C. Section 18-101 et seq., as amended from time to time, and includes any and
all benefits to which the holder of Sponsor Shares may be entitled as provided
in the Sponsor Agreement, together with all obligations of such Person to comply
with the terms and provisions of the Sponsor Agreement.
"Subsidiary" means any corporation, partnership, joint venture,
limited liability company, association or other entity in which the Sponsor
owns, directly or indirectly, more than 50% 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.
"Successor Delaware Trustee" has the meaning specified in Section
9.06(b).
"Ten Percent Holder" has the meaning specified in Article VI.
"Trading Day" means a day on which the Shares (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
Shares.
"Transfer Agent" means, with respect to the Shares and the Sponsor
Shares, -- a national banking association, or any successor(s) thereto.
"Trust" means the Delaware statutory trust continued hereby and
identified on the cover page of this Agreement.
"Trust Property" means the Sponsor Shares.
"Trustees" has the meaning specified in the preamble to this
Agreement.
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"Use Agreement" means the District Cooling System Use Agreement
dated as of October 1, 0000 xxxxxxx xxx Xxxx xx Xxxxxxx, Xxxxxxxx and MDE
Thermal Technologies, Inc. (formerly known as Exelon Thermal Technologies, Inc.
and formerly before that known as Unicom Thermal Technologies, Inc. and
Northwind, Incorporated), as amended on June 1, 1995, July 15, 1995, February 1,
1996, April 1, 1996, October 1, 1996, November 7, 1996, January 15, 1997, May 1,
1997, August 1, 1997, October 1, 1997, March 12, 1998, June 1, 1998, October 8,
1998, April 21, 1999, March 1, 2000, March 15, 2000, June 1, 2000, August 1,
2001, November 1, 2001, June 1, 2002, June 30, 2004 and as further amended from
time to time.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01 Name
(a) The Trust continued by this Agreement shall be known as
"Macquarie Infrastructure Company Trust" and all business of the Trust shall be
conducted in such name. The Sponsor, acting through the Board of Directors, may
change the name of the Trust upon ten (10) Business Days' written notice to the
Shareholders and the Trustees.
(b) Upon the Manager's written notice of its resignation, in
accordance with the terms of the Management Services Agreement, the Sponsor,
acting through the Board of Directors, shall within thirty (30) days of such
written notice cause the Trust to change its name to remove any reference to
"Macquarie" or the "Macquarie Group"; provided that, to the extent the Sponsor,
acting through the Board of Directors, deems it necessary or advisable, the
Trust may use "Macquarie" in referencing its previous name.
(c) Upon the termination of the Management Services Agreement and
the removal of the Manager in accordance with the terms of the Management
Services Agreement, the Sponsor, acting through the Board of Directors, shall
cause the Trust to change its name to remove any reference to "Macquarie" or the
"Macquarie Group"; provided that, to the extent the Sponsor, acting through the
Board of Directors, deems it necessary or advisable, the Trust may use
"Macquarie" in referencing its previous name.
Section 2.02 Office of the Delaware Trustee; Principal Place of
Business
The address of the Delaware Trustee in the State of Delaware is c/o
Wells Fargo Delaware Trust Company, 000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Services, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice to
the Shareholders and the Sponsor. The principal executive office of the Trust is
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 2.03 Initial Issuance of Shares
On April 13, 2004, the Sponsor issued to the Trust, as Member of the
Sponsor, one hundred (100) Sponsor Shares representing all of the issued and
outstanding Sponsor Shares as of such date. The then Regular Trustees
acknowledged receipt of such Sponsor Shares in trust from the Sponsor, which
constitute the Trust Property. In exchange for the Sponsor Shares, the
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then Regular Trustees caused the Trust to issue one hundred (100) Shares of the
Trust to the Sponsor. At all times, the Trust will have outstanding the
identical number of Shares as the number of Sponsor Shares that have been issued
and are outstanding. At all times, the Sponsor Shares shall comprise the Trust
Property.
Section 2.04 Trust to Be Sole Member of Sponsor
The Trust shall be the sole owner of the ownership interests of the
Sponsor represented by one hundred percent (100%) of the Sponsor Shares. For so
long as the Trust remains in existence, the Trust shall not sell or otherwise
transfer any of its Sponsor Shares to any Person. Every holder of Share
Certificates, by holding and receiving the same, agrees with the Trust to be
bound by the terms of this Agreement.
Section 2.05 Authorized Shares
The Trust shall be authorized to issue one class of Shares in an
aggregate amount of up to five hundred million (500,000,000) of such Shares. The
Trust is prohibited from issuing any other class of equity securities, any debt
securities or any derivative securities. The aggregate number of Shares that are
authorized may be increased from time to time by the Sponsor, by an amendment of
this Agreement upon the adoption of a resolution by the affirmative vote of at
least a majority of the Board of Directors declaring such amendment to be
advisable and the approval of such amendment by the affirmative vote of the
holders of a majority of the Shares present in person or represented by proxy at
a meeting of the Shareholders.
Section 2.06 Issuance of Additional Shares
The Sponsor shall have authority to authorize the issuance, from
time to time, of authorized but unissued Shares and cause the Trust to issue
such additional Shares in exchange for and upon receipt of an equal number of
Sponsor Shares. Upon the issuance of such additional Shares, the Regular Trustee
shall execute in accordance with Section 4.02 one or more Share Certificates in
certificated, fully registered form and shall deliver such Share Certificates to
the Transfer Agent. The Sponsor may sell or distribute the Shares in any manner,
subject to applicable law, that the Board of Directors in its sole discretion
deems appropriate and advisable.
Section 2.07 Repurchase of Shares at Direction of the Sponsor
(a) From time to time and at the direction of the Sponsor, acting
through the Board of Directors, the Trust shall conduct a capital reduction,
including the repurchase of any number of Shares issued and outstanding, on
similar terms to the capital reduction simultaneously conducted by the Sponsor
and shall ensure that an identical number of Sponsor Shares and Shares are
issued and outstanding at any one time.
(b) Any Shares tendered and repurchased by the Trust in accordance
with this Section 2.07 shall be deemed to be authorized and issued, but not
outstanding, and may subsequently be sold or transferred for due consideration.
Section 2.08 Agreement of Trust
The purposes of the Trust are to (i) issue Shares represented by the
Share Certificates, each such Share representing an undivided beneficial
interest in one underlying
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Sponsor Share owned by the Trust, in exchange for Sponsor Shares, (ii) own the
Sponsor Shares and (iii) engage in such other activities as are set forth in
this Agreement. Each person or entity in whose name a Share is registered on the
books of the Trust shall be a "beneficial owner" within the meaning of the
Delaware Statutory Trust Act. It is intended that the Trust shall qualify as a
grantor trust for U.S. federal income tax purposes; consistent with such
treatment the Trustees shall have no power under this Agreement to vary the
investment of the beneficial owners of the Trust. There shall be no implied
duties or obligations of the Trustees hereunder. Any action by the Trustees in
accordance with their respective powers shall constitute the act of and serve to
bind the Trust. The Delaware Trustee shall be a trustee for purposes of
fulfilling the requirements of Section 3807 of the Delaware Statutory Trust Act.
Notwithstanding any other provision of this Agreement, the Delaware Trustee
shall not be entitled to exercise any of the powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Regular Trustee, the
Manager or the Board of Directors described in this Agreement. Notwithstanding
anything herein to the contrary, the Delaware Trustee shall not be liable for
the acts or omissions of the Trust, the Regular Trustee, the Manager or the
Board of Directors.
Section 2.09 Authorization to Enter into Certain Transactions
The Sponsor is hereby authorized and directed, on behalf of the
Trust, to engage in the following activities:
(i) to prepare and file with the Commission and execute, in each
case on behalf of the Trust, (a) a Registration Statement on Form X-0,
Xxxx X-0 or Form S-3, as applicable (a "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments thereto, relating
to the registration of the Shares under the Securities Act, and (b) as
applicable, a Registration Statement on Form 8-A (a "1934 Act Registration
Statement") (including any pre-effective or post-effective amendments
thereto) relating to the registration of the Shares under Section 12(b) or
(g) of the Exchange Act;
(ii) to prepare and file with the New York Stock Exchange and/or any
other exchange or quotation service and execute, in each case on behalf of
the Trust, an application therewith and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Shares to be listed on the New York
Stock Exchange and/or any other exchange or quotation service;
(iii) to prepare and file and execute, in each case on behalf of the
Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Shares under
the securities or "blue sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable;
(iv) to negotiate the terms of, and execute on behalf of the Trust,
any underwriting agreements, purchase agreements or other agreements
relating to the initial public offering or any future issuance of the
Shares in exchange for Sponsor shares;
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(v) to execute and deliver, in each case on behalf of the Trust,
such certifications or reports required by the Xxxxxxxx-Xxxxx Act of 2002
from time to time as may be necessary or proper to the conduct of the
business of the Trust; and
(vi) to execute and deliver, in each case on behalf of the Trust,
such agreements, instruments, certificates and documents, and to make
filings with or representations on behalf of the Trust, to the City of
Chicago as may be necessary in connection with the potential acquisition
of Macquarie District Energy Holdings LLC.
(b) It is hereby acknowledged and agreed that in connection with any
execution, filing or document referred to in clauses (i) - (vi) above, (A) the
Regular Trustee (or his or her attorneys-in-fact and agents or the Sponsor as
permitted herein) is authorized on behalf of the Trust to file and execute such
document on behalf of the Trust and (B) the Delaware Trustee shall not be
required to join in any such filing or execute on behalf of the Trust any such
document.
Section 2.10 Title to Trust Property
Legal title to all Trust Property shall be vested at all times in
the Trust and shall be held and administered by the Regular Trustee for the
benefit of the Trust and the Shareholders in accordance with this Agreement.
Each Shareholder shall not have legal title to any part of the Trust Property,
but shall have an undivided beneficial interest in the Sponsor Shares owned by
the Trust.
Section 2.11 Certain Covenants of the Sponsor
The Sponsor will use its best efforts, consistent with the terms and
provisions of this Agreement, to cause the Trust to remain classified as a
"grantor trust" for U.S. federal income tax purposes.
ARTICLE III
DIVIDENDS AND DISTRIBUTIONS
Section 3.01 Dividends
(a) The Regular Trustee shall distribute to the Shareholders all
distributions or dividends received by the Trust with respect to the Sponsor
Shares from the Sponsor within - Business Days of receipt. Any such
distributions or dividends shall be allocated to Shareholders in the same
amounts as any such allocations were made per Sponsor Share by the Sponsor.
(b) Dividends or distributions on the Shares shall be payable to the
Shareholders thereof as they appear on the Share Register for the Shares on the
relevant record date.
Section 3.02 Payment Procedures
Payments of Dividends in respect of the Shares shall be made by (i)
check mailed to the address of the Person entitled thereto as such address shall
appear on the Share Register, or (ii) wire transfer of immediately available
funds to an account maintained by the Person entitled thereto as specified in
the Share Register.
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Section 3.03 Tax Returns and Reports
The Sponsor shall prepare (or cause to be prepared), at the
Sponsor's expense, and file or provide (or cause to be filed or provided) all
U.S. federal, state and local tax and information returns and reports required
to be filed or provided to Shareholders by or in respect of the Trust. In this
regard, the Sponsor shall (a) prepare and file (or cause to be prepared or
filed) Form 1041 or the appropriate Internal Revenue Service form required to be
filed in respect of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) a tax information statement
or such other form or statement, if any, required to be furnished in respect of
the Trust in each taxable year of the Trust. The Sponsor shall use all
reasonable efforts to comply in all material respects with U.S. federal, state
and local withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Shareholders upon the Shares. To
the extent that the Trust is required to withhold and pay over any amounts to
any authority with respect to Dividends or allocations to any Shareholder, the
amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Shareholder. In the event of any claimed over-withholding,
Shareholders shall be limited to an action against the applicable taxing
jurisdiction. If the amount required to be withheld was not withheld from actual
Dividends paid, the Trust must reduce subsequent Dividends by the amount of such
withholding (but not by the amount of any liability imposed on the Trust as
withholding agent).
ARTICLE IV
SHARE CERTIFICATES
Section 4.01 Initial Ownership
Upon the formation of the Trust, the Sponsor was, and as of the date
hereof continues to be, the sole beneficial owner of the Trust. The Sponsor
shall have the right to sell or distribute Shares in any manner, subject to
applicable law, that the Board of Directors in its sole discretion deems
appropriate and advisable.
Section 4.02 Share Certificates
The Share Certificates shall be issued substantially in the form of
Exhibit A hereto. Each Share Certificate shall bear a serial number, shall
exhibit the Shareholder's name and the number of Shares evidenced thereby and
shall be executed on behalf of the Trust by manual or facsimile signature of the
Regular Trustee. Share Certificates bearing the manual or facsimile signatures
of individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall be validly issued and
entitled to the benefit of this Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the delivery of
such Share Certificates or did not hold such offices at the date of delivery of
such Share Certificates. A transferee of a Share Certificate shall become a
Shareholder, and shall be entitled to the rights and subject to the obligations
of a Shareholder hereunder, upon due registration of such Share Certificate in
such transferee's name pursuant to Section 4.04.
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Section 4.03 Share Register
The Sponsor shall retain the Transfer Agent to keep a register or
registers (herein referred to as the "Share Register") in which shall be
recorded the name and address of each Person owning the Shares evidenced by each
Share Certificate evidencing Shares issued by the Trust, the number of Shares
evidenced by each such Share Certificate, the date of issuance thereof and, in
the case of cancelation, the date of cancelation. Except as otherwise expressly
required by law, the Person in whose name Shares stand on the Share Register of
the Trust shall be deemed the owner and Shareholder of record thereof for all
purposes.
Section 4.04 Transfer of Shares
Registration of transfers of Shares shall be made only in the Share
Register of the Trust upon request of the registered Shareholder of such Shares,
or of his attorney thereunto authorized by power of attorney duly executed and
filed with the Transfer Agent, and upon the surrender of the Share Certificate
or Share Certificates evidencing such Shares properly endorsed or accompanied by
a stock power duly executed, together with such proof of authenticity of
signatures as the Transfer Agent may reasonably require. All Share Certificates
surrendered for transfer shall be canceled before new Share Certificates for the
transferred Shares shall be issued. Upon surrender for registration of transfer,
and cancelation, of any Share Certificate, the Regular Trustee shall execute in
the name of the designated transferee or transferees, one or more new Share
Certificates.
Section 4.05 Mutilated, Lost, Destroyed or Stolen Share Certificates
Each Shareholder of record of Shares shall promptly notify the Trust
of any mutilation, loss or destruction of any Share Certificate of which such
Shareholder is the recordholder. The Sponsor may, in its discretion, cause the
Transfer Agent to issue a new Share Certificate in place of any Share
Certificate theretofore issued by it and alleged to have been mutilated, lost,
stolen or destroyed, upon surrender of the mutilated Share Certificate or, in
the case of loss, theft or destruction of the Share Certificate, upon
satisfactory proof of such loss, theft or destruction, and the Sponsor may, in
its discretion, require the Shareholder of record of the Shares evidenced by the
lost, stolen or destroyed Share Certificate, or his legal representative, to
give the Transfer Agent a bond sufficient to indemnify the Transfer Agent
against any claim made against it on account of the alleged loss, theft or
destruction of any such Share Certificate or the issuance of such new Share
Certificate.
Section 4.06 Rights of Shareholders
The legal title to the Trust Property is vested exclusively in the
Trust in accordance with Section 2.10, and the Shareholders shall not have any
right or title therein other than the undivided beneficial interest in the
Sponsor Shares owned by the Trust conferred by their Shares and they shall have
no right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Shares shall be personal property
giving only the rights specifically set forth therein and in this Agreement. The
Shares shall have no preemptive or similar rights and, when issued and delivered
to Shareholders against payment of the purchase price therefor and otherwise in
accordance with this Agreement, shall be deemed validly issued, fully paid and
nonassessable undivided beneficial interests in the Sponsor Shares owned by the
Trust. Shareholders, in their capacities as such, shall be entitled to the
benefits
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provided in this Agreement and to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. Members of the Board of
Directors shall owe the same duties to Shareholders, in their capacities as
such, as they owe to the Trust, as Member of the Sponsor pursuant to the Sponsor
Agreement.
ARTICLE V
MEETINGS; VOTING
Section 5.01 Annual Meetings of Shareholders
The annual meeting of Shareholders to direct the voting of the
Trust, as Member of the Sponsor, 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 5.02 Special Meetings of Shareholders
Special meetings of Shareholders 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 Shareholders 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 5.03 Place of Meeting
The Board of Directors may designate the place (if any) of meeting
for any meeting of Shareholders. If no designation is made by the Board of
Directors, the place of meeting shall be the principal office of the Sponsor. In
lieu of holding any meeting of Shareholders at a designated place, the Board of
Directors may, in its sole discretion, determine that any meeting of
Shareholders may be held solely by means of remote communication.
Section 5.04 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
Shareholders and proxy holders may be deemed to be present in person and vote at
such meeting, shall be prepared and delivered by the Sponsor 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 Shareholder 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 Shareholders as shall have been brought before the meeting pursuant to the
Trust's notice of meeting. Any previously scheduled meeting of the Shareholders
may be postponed, and (unless this Agreement otherwise provides) any special
meeting of the Shareholders may be canceled, by resolution of the Board of
Directors upon public notice given prior to the time previously scheduled for
such meeting of Shareholders.
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(b) Notice to Shareholders shall be given personally, by mail or, to
the extent and in the manner permitted by applicable law, electronically to each
Shareholder of record. If mailed, such notice shall be delivered by postage
prepaid envelope directed to each holder at such Shareholder's address as it
appears in the records of the Trust and shall be deemed given when deposited in
the United States 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 Shareholder has
consented to receive notice; (2) if by electronic mail, when directed to an
electronic mail address at which the Shareholder has consented to receive
notice; (3) if by posting on an electronic network together with separate notice
to the Shareholder 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 form of
electronic transmission, when directed to the Shareholder. An affidavit of the
Secretary or an assistant Secretary or of the Transfer Agent or other agent of
the Sponsor 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 Shareholders need not be given to any
Shareholder if waived by such Shareholder either in a writing signed by such
Shareholder 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 Shareholder.
(d) In order that the Trust may determine the Shareholders entitled
to notice of or to vote at any meeting of Shareholders 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
Shareholders entitled to notice of or to vote at any meeting of Shareholders 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 5.05 Quorum and Adjournment
Except as otherwise provided by law or by this Agreement, the
Shareholders present in person or by proxy holding a majority of the outstanding
Shares entitled to vote, shall constitute a quorum at a meeting of Shareholders.
The Chairman of the Board or the holders of a majority of the Shares entitled to
vote so represented may adjourn the meeting from time to time, whether or not
there is such a quorum. The Shareholders 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
Shareholders 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 Shareholders and proxyholders may be
deemed to be present in person and vote at such reconvened meeting
13
are announced at the meeting at which the adjournment is taken. At the
reconvened meeting, the Shareholders may transact any business that might have
been transacted at the original meeting. A determination of Shareholders of
record entitled to notice of or to vote at a meeting of Shareholders 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 Shareholder entitled to vote at the meeting.
Section 5.06 Voting
(a) Subject to the provisions of this Section 5.06 and Section 5.07,
the Shareholders shall have the exclusive and absolute right to direct the
Regular Trustee with respect to voting of the Trust, as Member of the Sponsor,
with respect to the Sponsor Shares at all times during the term of the Trust.
(b) When the Trust is required or permitted to vote with respect to
the Sponsor Shares, the Sponsor shall prepare and deliver to the Trustees the
form of proxy materials to enable the Regular Trustee to solicit from the
Shareholders the manner in which they direct the Regular Trustee to vote their
Shares. Shareholders shall be entitled to one vote for each Share in respect of
any matter as to which Members are entitled to vote as provided in the Sponsor
Agreement.
(c) All Shares shall to the extent practicable under the
circumstances be voted or deemed to have been voted (to the extent that Shares
are not voted) in the same proportion as the Shares are directed to be voted by
the Shareholders, including for purposes of determining a quorum, in favor of,
in opposition to or abstaining from the matter. If such calculation of votes
would require a fractional vote, the Regular Trustee shall vote the next lower
number of whole Shares.
Section 5.07 Proxies
At all meetings of Shareholders, a Shareholder may vote by proxy as
provided by the Exchange Act; 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 this Agreement. Any proxy to be used at a meeting of
Shareholders must be filed with the Secretary of the Sponsor or his or her
representative at or before the time of the meeting.
Section 5.08 Notice of Shareholder Business and Nominations
(a) Annual Meetings of Shareholders
(i) Except in the case of the Initial Board, nominations of
individuals for election to the Board of Directors of the Sponsor, other
than the Chairman, for so long as the Manager is entitled to appoint a
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 Shareholders, may be made at an annual meeting of
Shareholders (A) pursuant to the Trust's notice of meeting delivered
pursuant to Section 5.04 hereof, (B) by or at the direction of the Board
of Directors or (C) by any
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Shareholder who is entitled to vote at the meeting, who complies with the
notice procedures set forth in clauses (ii) and (iii) of this Section
5.08(a).
In addition to any other applicable requirements, for a nomination
for election of a director to be made by a Shareholder or for business to
be properly brought before an annual meeting by a Shareholder, such
Shareholder must (A) be a Shareholder of record on both (1) the date of
the delivery of such nomination or the date of the giving of the notice
provided for in this Section 5.08(a) and (2) the record date for the
determination of Shareholders entitled to vote at such annual meeting and
(B) have given timely notice thereof in proper written form in accordance
with the requirements of this Section 5.08 (a) to the Secretary.
(ii) For nominations or other business to be properly brought before
an annual meeting by a Shareholder pursuant to clause (C) of paragraph
(a)(i) of this Section 5.08, a Shareholder must have given timely notice
thereof in writing to the Secretary and, in the case of business other
than nominations, such other business must otherwise be a proper matter
for Shareholder action. To be timely, a Shareholder's notice shall be
delivered to the Secretary at the principal executive offices of the
Sponsor not less than one hundred and twenty (120) days nor more than one
hundred and fifty (150) 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 Shareholders, a Shareholder's notice shall be
timely if it is delivered to the Secretary at the principal executive
offices of the Sponsor 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 Shareholder's
notice as described in this Section 5.08(a).
Subject to Section 5.08(a)(i), such Shareholder's notice shall set
forth: (A) as to each individual whom such Shareholder 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 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 such Shareholder 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 Shareholder and the
beneficial owner or holder of Shares, if any, on whose behalf the proposal is
made; and (C) as to such Shareholder 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 Shareholder as they appear on the Trust's books and of such
beneficial owner and (2) the number of Shares which are owned beneficially and
of record by such Shareholder and such beneficial owner.
Notwithstanding anything in the second sentence of clause (ii) of
this Section 5.08(a) to the contrary, in the event that the number of directors
to be elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for
15
director or specifying the size of the increased Board of Directors made by the
Sponsor, on behalf of the Trust at least one hundred (100) days prior to the
first anniversary of the preceding year's annual meeting, a Shareholder's notice
required by this Section 5.08 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 Sponsor
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 Sponsor, on behalf of the
Trust.
(b) Special Meeting of Shareholders
Only such business shall be conducted at a special meeting of
Shareholders as shall have been brought before the meeting pursuant to the
Trust's notice of meeting pursuant to Section 5.04 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 a 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 Shareholders
at which directors are to be elected pursuant to the Trust's notice of meeting
(i) by or at the direction of the Board of Directors or (ii) by any Shareholder
who is entitled to vote at the meeting who complies with the notice procedures
set forth in this Section 5.08.
In addition to any other applicable requirements, for a nomination
for election of a director to be made by a Shareholder, such Shareholder must
(A) be a Shareholder of record on both (1) the date of the delivery of such
nomination and (2) the record date for the determination of Shareholders
entitled to vote at such special meeting and (B) have given timely notice
thereof in proper written form in accordance with the requirements of this
Section 5.08(b) to the Secretary.
In the event the Sponsor, on behalf of the Trust calls a special
meeting of Shareholders for the purpose of electing one or more directors to the
Board of Directors, any such Shareholder may nominate such number of individuals
for election to such position(s) as are specified in the Trust's Notice of
Meeting, if Shareholder's notice as required by clause (ii) of Section 5.08(a)
of this Agreement shall be delivered to the Secretary at the principal executive
offices of the Sponsor 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 Shareholder's notice as described above.
(c) General
(i) Only individuals who are nominated in accordance with the
procedures set forth in this Section 5.08 shall be eligible to be elected
as directors at a meeting of Shareholders and only such business shall be
conducted at a meeting of Shareholders as shall have been brought before
the meeting in accordance with the procedures set forth in this Section
5.08. Except as otherwise provided by applicable law or this Section 5.08,
the Chairman shall have the power and duty to determine whether a
nomination or any
16
business proposed to be brought before the meeting was made in accordance
with the procedures set forth in this Section 5.08 and, if any proposed
nomination or business is not in compliance with this Section 5.08, to
declare that such defective proposal or nomination shall be disregarded.
(ii) For purposes of this Section 5.08, "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 Trust 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 5.08,
a Shareholder 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 5.08. Nothing in this Section 5.08 shall
be deemed to affect any rights of Shareholders to request inclusion of
proposals in the Trust's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
Section 5.09 Procedure for Election of Directors; Voting
The election of directors submitted to Shareholders 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 Shareholders at any meeting shall be decided by the
affirmative vote of a majority of the Shares present in person or represented by
proxy at the meeting of Shareholders.
The vote on any matter at a meeting, including the election of
directors, shall be by written ballot. Each ballot shall be signed by
Shareholder voting, or by such Shareholder's proxy, and shall state the number
of Shares voted.
Section 5.10 Inspectors of Elections; Opening and Closing the Polls
The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors shall not be directors, officers or
employees of the Sponsor, 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 Shareholders, 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 Trust were a
Delaware corporation.
Section 5.11 Confidential Shareholder Voting
All proxies, ballots and votes, in each case to the extent they
disclose the specific vote of an identified Shareholder, 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 Sponsor or Trustee; provided, however, that, notwithstanding the
17
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 Sponsor 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 a Shareholder
requests or consents to disclosure of such Shareholder's vote or writes comments
on such Shareholder's proxy card or ballot.
Section 5.12 Waiver of Notice
Whenever any notice is required to be given to any Shareholder by
the terms of this Agreement, a waiver thereof in writing, signed by the Person
or Persons entitled to such notice, or a waiver thereof by electronic
transmission by the Person or Persons 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 Shareholders need be specified in any written waiver of
notice or any waiver by electronic transmission of such meeting.
Section 5.13 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, Shareholders and proxyholders may, by means
of remote communication:
(a) participate in a meeting of Shareholders; and
(b) be deemed present in person and vote at a meeting of
Shareholders, whether such meeting is to be held at a designated place or solely
by means of remote communication,
provided, however, that (i) the Sponsor, on behalf of the Trust, 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 Shareholder or
proxyholder, (ii) the Sponsor, on behalf of the Trust, shall implement
reasonable measures to provide such Shareholders and proxyholders a reasonable
opportunity to participate in the meeting and to vote on matters submitted to
Shareholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any
Shareholder 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 Sponsor, on behalf of the Trust.
Section 5.14 Inspection of Records
(a) The Sponsor, on behalf of the Trust, shall keep or cause to be
kept at the principal place of business of the Trust appropriate books and
records with respect to the Trust, including, without limitation, all books and
records necessary to provide to the Shareholders 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 Trust in the regular course
of its business, including, without limitation, the record of the Shareholders,
books of account and records of Trust proceedings, may be kept in electronic or
any other form, provided that the
18
books and records so maintained are convertible into clearly legible written
form within a reasonable period of time.
(b) The Sponsor shall make, at least ten (10) days before every
meeting of Shareholders, a complete list of the Shareholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
Shareholder and the number of Shares registered in the name of each Shareholder.
Such list shall be open to the examination of any Shareholder, for any purpose
germane to the meeting for a period of at least ten (10) days prior to the
meeting: (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of
the meeting, or (ii) during ordinary business hours, at the principal place of
business of the Trust. In the event that the Sponsor determines to make the list
available on an electronic network, the Sponsor may take reasonable steps to
ensure that such information is available only to Shareholders. The list shall
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any Shareholder who is present.
Any Shareholder, in person or by attorney or other agent, shall,
upon written demand stating the purpose thereof, have the right during the usual
business hours to inspect for any proper purpose, and to make copies and
extracts from: (1) the Trust's Share Register, a list of the Shareholders, and
its other books and records; (2) the Sponsor's books and records; or (3) a
Subsidiary's books and records or copies thereof in electronic form; to the
extent that (i) the Sponsor has actual possession and control of such records of
such Subsidiary, or (ii) the Sponsor could obtain such records through the
exercise of control over such Subsidiary, provided that as of the date of the
making of the demand (A) Shareholder inspection of such books and records of the
Subsidiary of the Sponsor would not constitute a breach of an agreement between
the Sponsor or the Subsidiary and a Person or Persons not Affiliated with the
Sponsor, and (B) the Subsidiary would not have the right under the law
applicable to it to deny the Sponsor access to such books and records upon
demand by the Sponsor. In every instance where the beneficial holder of Shares
is not a holder of record, the demand shall state the Person's status as a
beneficial holder of Shares, be accompanied by documentary evidence of
beneficial ownership of Shares, and state that such documentary evidence is a
true and correct copy of what it purports to be. A proper purpose shall mean a
purpose reasonably related to such Person's interest as a Shareholder or
beneficial holder of Shares.
ARTICLE VI
DISCLOSURE REQUIREMENTS FOR 10% SHAREHOLDERS
To ensure the Trust's compliance with its obligations under the Use
Agreement, in the event the Sponsor or any Subsidiary, or both, is required to
obtain the approval of the City of Chicago (or any department or agency thereof)
for any specific matter, including, but not limited to, the amendment of the Use
Agreement, or otherwise determines to request that the City of Chicago (or any
department or agency thereof) take action with respect to any matter, the
Sponsor shall deliver to the Transfer Agent notice of such approval requirement
or request for action and a copy of the then current form of the City of Chicago
Economic Disclosure Statement and Affidavit and cause the Transfer Agent to mail
a copy of such notice to any Beneficial Holder holding ten percent or more of
the then issued and outstanding Shares (each, a "Ten Percent Holder"). Within
thirty (30) days of the mailing of such notice, each Ten Percent
19
Holder shall provide to the Sponsor for filing with the City of Chicago a
completed City of Chicago Economic Disclosure Statement and Affidavit, a
standard form of which is attached hereto as Exhibit B. Each Ten Percent Holder
shall provide any supplemental statements, affidavits or material required to
update any Economic Disclosure Statement and Affidavit filed with the City of
Chicago as required by the City of Chicago and as requested by the Sponsor from
time to time.
ARTICLE VII
RIGHT OF SHAREHOLDERS TO ENFORCE PROVISIONS OF SPONSOR
AGREEMENTS AND BRING DERIVATIVE ACTION
(a) Each Shareholder shall have the right to institute any legal
proceeding against the Sponsor to enforce the provisions of the Sponsor
Agreement.
(b) Shareholders holding at least ten percent (10%) or more of the
Shares shall have the right to cause the Trust to institute any legal proceeding
for any remedy available to the Trust as the sole Member of the Sponsor,
including bringing a derivative action under the Limited Liability Company Act,
and such Shareholders may direct the time, method and place of conducting any
such legal proceeding brought by the Trust.
ARTICLE VIII
SHAREHOLDER VOTE REQUIRED IN CONNECTION WITH CERTAIN
BUSINESS COMBINATIONS OR TRANSACTIONS
Section 8.01 Vote Generally Required. Except as provided in Sections
10.02 and 10.03 and subject to the provisions of Section 8.03 hereof, neither
the Trust or the Sponsor shall: (a) merge or consolidate with or into any
limited liability company, corporation, statutory trust, business trust or
association, real estate investment trust, common-law trust or any other
unincorporated business, including a partnership, or (b) sell, lease or exchange
all or substantially all of its Property and assets, unless the Sponsor, acting
through the Board of Directors, adopts a resolution approving such action and
unless such action shall be approved by the affirmative vote of the holders of a
majority of the Shares outstanding and entitled to vote thereon; provided,
however, that any Shares held by the Manager or an Affiliate or Associate of the
Manager, shall not be entitled to vote to approve any merger or consolidation
with or into, or sale, lease or exchange to, the Manager or any Affiliate or
Associate thereof. The notice of the meeting at which such resolution is to be
considered will so state.
For the purposes of this Article VIII, the following terms have the
following meanings:
"Associate" has the meaning ascribed to such term in Rule 12b-2 of
the General rules promulgated under the Exchange Act.
"Business Combination" means:
(i) any merger or consolidation of the Trust, the Sponsor or any
Subsidiary thereof with (A) an Interested Shareholder, or (B) any other
Person (whether or not itself an Interested Shareholder) that is, or after
such merger or consolidation would be, an Affiliate or Associate of an
Interested Shareholder; or
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(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with,
or proposed by or on behalf of, an Interested Shareholder or an Affiliate
or Associate of an Interested Shareholder of any assets of the Trust, the
Sponsor or any Subsidiary thereof having an aggregate Fair Market Value of
not less than ten percent (10%) of the Net Investment Value of the Trust;
or
(iii) the issuance or transfer by the Trust, the Sponsor or any
Subsidiary thereof (in one transaction or a series of transactions) of any
securities of the Trust, the Sponsor or any Subsidiary to, or proposed by
or on behalf of, an Interested Shareholder or an Affiliate or Associate of
an Interested Shareholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate Fair Market Value
of not less than ten percent (10%) of the Net Investment Value of the
Trust; or
(iv) any spinoff or split-up of any kind of the Trust, the Sponsor
or any Subsidiary thereof, proposed by or on behalf of an Interested
Shareholder or an Affiliate or Associate of an Interested Shareholder; or
(v) any reclassification of the Shares (including any reverse split
of Shares) or recapitalization of the Trust, or any merger or
consolidation of the Trust with any Subsidiary thereof, or any other
transaction (whether or not with or into or otherwise involving an
Interested Shareholder), that has the effect, directly or indirectly, of
increasing the percentage of the outstanding shares of (A) the Shares or
any class of equity securities of any Subsidiary thereof or (B) any class
of securities of any Subsidiary convertible into or exchangeable for
Shares or equity securities of any Subsidiary, that are directly or
indirectly owned by an Interested Shareholder and its Affiliates and
Associates; or
(vi) any agreement, contract or other arrangement providing for any
one or more of the actions specified in clauses (i) through (v) above.
"Continuing Director" means (i) any director of the Board of
Directors who (A) is neither the Interested Shareholder involved in the Business
Combination as to which a determination of Continuing Directors is provided
hereunder, nor an Affiliate, Associate, employee, agent or nominee of such
Interested Shareholder, or a relative of any of the foregoing, and (B) was a
member of the Board of Directors prior to the time that such Interested
Shareholder became an Interested Shareholder, or (ii) any successor of a
Continuing Director described in clause (i) above who is recommended or elected
to succeed a Continuing Director by the affirmative vote of a majority of
Continuing Directors then on the Board of Directors.
"Fair Market Value" means: (i) in the case of equity securities, the
average of the closing sale prices during the ten (10)-day period immediately
preceding the date in question of such equity securities:
(1) on the New York Stock Exchange (regular way);
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(2) if such equity securities are not listed for trading on the
NYSE, as reported in the composite transactions for the principal U.S.
national or regional securities exchange on which such equity securities
are so listed;
(3) if such equity securities are not so listed on a principal U.S.
national or regional securities exchange, the price as reported by the
Nasdaq National Market;
(4) if such equity securities are not so reported, the last quoted
bid price for such equity securities, in the over-the-counter market as
reported by the National Quotation Bureau or a similar organization; or
(5) if such equity securities are not so quoted, the fair market
value of such equity securities, as determined by a majority of the
Continuing Directors in good faith;
and (ii) in the case of Property other than cash or equity securities, the fair
market value of such Property on the date in question as determined by a
majority of the Continuing Directors in good faith.
"Future Investment" means a contractual commitment to invest
represented by a definitive agreement.
"Interested Shareholder" means any Person (other than the Manager,
the Trust, the Sponsor or any Subsidiary of the Sponsor, any employee benefit
plan maintained by the Sponsor, any Subsidiary or any trustee or fiduciary with
respect to any such plan when acting in such capacity) that:
(i) is, or was at any time within the three-year period immediately
prior to the date in question, the Beneficial Owner of fifteen percent
(15%) or more of the then outstanding Shares and who did not become the
Beneficial Owner of such amount of Shares pursuant to a transaction that
was approved by the Sponsor, acting through the Board of Directors; or
(ii) is an assignee of, or has otherwise succeeded to, any Shares of
which an Interested Shareholder was the Beneficial Owner at any time
within the three-year period immediately prior to the date in question, if
such assignment or succession shall have occurred in the course of a
transaction, or series of transactions, not involving a public offering
within the meaning of the Securities Act.
For the purpose of determining whether a Person is an Interested
Shareholder, the Shares that may be issuable or exchangeable by the Trust to the
Interested Shareholder pursuant to any agreement, arrangement or understanding,
or upon the exercise of conversion rights, warrants or options, or otherwise,
shall be included, but not any other Shares that may be issuable or exchangeable
by the Trust pursuant to any agreement, arrangement or understanding, or upon
the exercise of conversion rights, warrants or options, or otherwise, to any
Person who is not the Interested Shareholder.
"Managed Subsidiary" means Macquarie Infrastructure Company Inc.,
Macquarie Yorkshire LLC, South East Water LLC, Communications Infrastructure
LLC, and, any directly
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owned Subsidiary of the Sponsor that becomes party to the Management Services
Agreement, from time to time.
"Market Value of the Trust Stock" means the product of (1) the
average number of shares of Trust Stock issued and outstanding, other than
treasury Shares during the last fifteen (15) Trading Days in the most recent
full Fiscal Quarter multiplied by (2) the volume weighted average trading price
per share of Trust Stock traded on the NYSE over those fifteen (15) Trading
Days.
"Net Investment Value" means:
(a) the Market Value of the Trust Stock; plus
(b) the amount of any borrowings (other than intercompany
borrowings) of the Sponsor and its Managed Subsidiaries (but not including
borrowings on behalf of any Subsidiary of the Managed Subsidiaries); plus
(c) the value of Future Investments of the Sponsor and/or any of its
Subsidiaries other than cash or cash equivalents, as calculated by the Manager
and approved by a majority of the Continuing Directors; provided that such
Future Investment has not been outstanding for more than two consecutive full
Fiscal Quarters; less
(d) the aggregate amount held by the Sponsor and its Managed
Subsidiaries in cash or cash equivalents (but not including cash or cash
equivalents held specifically for the benefit of any Subsidiary of a Managed
Subsidiary).
Section 8.02 Vote for Business Combinations. The affirmative vote of
the holders of record of outstanding Shares represented by at least sixty-six
and two-thirds percent (66 2/3%) of the then outstanding Shares (excluding
Shares held by the Interested Shareholder or any Affiliate or Associate of an
Interested Shareholder) shall be required to approve any Business Combination.
Such affirmative vote shall be required notwithstanding the fact that no vote
may be required, or that a lesser percentage may be specified, by law or in any
agreement with any securities exchange or otherwise.
Section 8.03 Power of Continuing Directors. The Continuing Directors
shall have the power and duty to determine, on the basis of information known to
them after reasonable inquiry, all facts necessary to determine compliance with
this Article VIII, including, without limitation, (a) whether a Person is an
Interested Shareholder, (b) the number of Shares beneficially owned by any
Person, (c) whether a Person is an Affiliate or Associate of another and (d) the
Fair Market Value of the Shares, the Sponsor Shares or the equity securities of
any Subsidiary thereof; and the good faith determination of the Continuing
Directors on such matters shall be conclusive and binding for all the purposes
of this Article VIII.
Section 8.04 No Effect on Fiduciary Obligations. Nothing contained
in this Article shall be construed to relieve the members of the Board of
Directors or an Interested Shareholder from any fiduciary obligation imposed by
law.
Section 8.05 Miscellaneous. In addition to any affirmative vote
required by law or by this Agreement, the affirmative vote of a majority of the
then outstanding Shares held by
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the Shareholders that are not held by the Interested Shareholder or an Affiliate
or Associate of an Interested Shareholder shall be required to approve the sale
or transfer by an Interested Shareholder or an Affiliate or Associate of an
Interested Shareholder to the Trust, the Sponsor or any Subsidiary (in one
transaction or a series of transactions) of any Shares, securities of the
Sponsor or any Subsidiary in exchange for cash, securities of the Sponsor or any
Subsidiary. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be specified, by
law or in any agreement with any securities exchange or otherwise.
ARTICLE IX
THE TRUSTEES
Section 9.01 Certain Duties and Responsibilities
(a) In addition to the duties and responsibilities provided for in
Sections 3.01 and 5.05, the Regular Trustee shall have the following exclusive
duties:
(i) to maintain bank accounts, brokerage accounts and other custody
accounts that receive Trust income and receipts from which Trust
expenditures and distributions are disbursed;
(ii) to maintain evidence of intangible Trust assets;
(iii) to maintain Trust records;
(iv) to maintain an office for Trust business;
(v) to originate, facilitate and review Trust reports and other
Trust communications;
(vi) to execute documents and authorize Trust account transactions;
(vii) to retain accountants, attorneys, agents and other advisors in
connection with its duties under this Agreement;
(viii) to file reports and returns on behalf of the Trust with
government agencies to the extent required by law and as specifically
directed in writing by the Sponsor; and
(ix) to perform such other actions as are necessary to effect any of
the foregoing duties; provided, however, that no action may be taken by
the Regular Trustee to extent that such action would cause the Regular
Trustee to be considered to have the power to vary the investment of the
beneficial owners or otherwise to cause the Trust no longer to qualify as
a grantor trust for U.S. federal income tax purposes.
(b) The duties and responsibilities of the Trustees shall be as
provided by this Agreement. Except as provided in Section 2.09(a), the Sponsor
hereby acknowledges and agrees that the Trustees are authorized, directed and
instructed to act, only as specifically authorized in writing by the Sponsor.
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Any written instructions, notwithstanding any error in the
transmission thereof or that such instructions may not be genuine, shall, as
against the Sponsor and in favor of the Trustees, be conclusively deemed to be
valid instructions from the Sponsor to the Trustees for the purposes of this
Agreement, if reasonably believed by the Trustees to be genuine and if not
otherwise insufficient on the face of such written instructions; provided,
however, that a Trustee in its discretion may decline to act upon any
instructions where they are not received by such Trustee in sufficient time for
such Trustee to act upon or in accordance with such instructions, where such
Trustee has reasonable grounds for concluding that the same have not been
accurately transmitted or are not genuine or where such Trustee believes in good
faith that complying with such instructions is contrary to law or might subject
such Trustee to any liability. If a Trustee declines to act upon any
instructions for any reason set out in the preceding sentence, it shall notify
the Sponsor and the other Trustees in writing forthwith after it so declines.
(c) The Trustees shall not be liable for any act or omission in the
course of or connected with their performance hereunder, except only that each
Trustee shall be subject to liability and assume the entire responsibility for
direct damages suffered by the Sponsor or any other Person occasioned by such
Trustee's own gross negligence or willful misconduct or the gross negligence or
willful misconduct of any of such Trustee's directors, officers or employees in
the rendering of its performance hereunder, as determined by a court of
competent jurisdiction.
(d) The Trustees shall incur no liability to anyone in acting upon
any document reasonably believed by them to be genuine (which is not
insufficient on its face) and to have been signed by the proper Person or
Persons. The Trustees may accept a certified copy of a resolution of the board
of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the manner of
ascertainment of which is not specifically prescribed herein, the Trustees may
for all purposes hereof rely on a certificate, signed by the Sponsor, as to such
fact or matter, and such certificate, if relied upon by the Trustees in good
faith, shall constitute full protection to the Trustees for any action taken or
omitted to be taken by them in good faith in reliance thereon.
In no event shall the Trustees be liable for (A) acting in
accordance with instructions from the Sponsor, (B) special or consequential
damages or (C) the acts or omissions of their nominees, correspondents,
designees, agents or subagents appointed by them in good faith.
(e) In the event that the Trustees are unsure of the course of
action to be taken by them hereunder, the Trustees may request instructions from
the Sponsor and, to the extent the Trustees follow such instructions in good
faith, they shall not be liable to any Person. In the event that no instructions
are provided within the time requested by the Trustees, they shall have no duty
or liability for their failure to take any action or for any action they take in
good faith and in accordance with the terms hereof.
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Section 9.02 Not Responsible for Recitals or Issuance of Shares
The recitals contained herein and in the Share Certificates shall
not be taken as the statements of the Trustees, and the Trustees do not assume
any responsibility for their correctness.
Section 9.03 May Hold Shares
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Shares and
may otherwise deal with the Trust with the same rights it would have if it were
not a Trustee or such other agent.
Section 9.04 Compensation; Indemnity; Fees
The Sponsor agrees:
(a) to pay the Delaware Trustee from time to time such compensation
for all services rendered by them hereunder as the parties shall agree
from time to time in writing (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Delaware Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Delaware Trustee in accordance with
any provision of this Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance determined by a court of competent
jurisdiction to have been caused by its own gross negligence or willful
misconduct; and
(c) the Sponsor agrees, to the fullest extent permitted by
applicable law, to indemnify and hold harmless (i) the Trustees, (ii) any
officer, director, shareholder, employee, representative or agent of the
Trustees, and (iii) any employee or agent of the Trust (referred to herein
as an "Indemnified Person") from and against any loss, damage, liability,
tax, penalty, expense or claim of any kind or nature whatsoever incurred
by such Indemnified Person by reason of the creation, operation or
termination of the Trust or any act or omission performed or omitted by
such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by this Agreement,
except that no Indemnified Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such Indemnified Person
by reason of gross negligence or willful misconduct with respect to such
acts or omissions.
Section 9.05 Delaware Trustee Required; Eligibility of Trustees
(a) There shall at all times be a Delaware Trustee hereunder with
respect to the Shares. The Delaware Trustee shall be either (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or (ii)
a legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity. If at any time the
Delaware
26
Trustee with respect to the Shares shall cease to be eligible in accordance with
the provisions of this Section 9.05, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article IX.
(b) There shall at all times be one Regular Trustee hereunder with
respect to the Shares. The Regular Trustee shall be either a natural person who
is at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
Section 9.06 Resignation and Removal; Appointment of Successor
(a) Subject to Sections 9.06(b) and 9.06(c), any Trustee (the
"Relevant Trustee") may be appointed or removed without cause at any time by the
Sponsor.
(b) The Trustee that acts as Delaware Trustee shall not be removed
in accordance with Section 9.06(a) until a successor possessing the
qualifications to act as Delaware Trustee under Section 9.05 (a "Successor
Delaware Trustee") has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the removed Delaware Trustee.
(c) A Trustee appointed to office shall hold office until his, her
or its successor shall have been appointed or until his, her or its death,
removal, resignation, dissolution or liquidation. Any Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing with thirty (30) days notice signed by the Trustee and delivered to the
Sponsor and the Trust, which resignation shall take effect upon such later date
as is specified therein; provided, however, that no such resignation of the
Trustee that acts as the Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.
(d) If no Successor Delaware Trustee shall have been appointed and
accepted appointment as provided in this Section 9.06 within sixty (60) days
after delivery pursuant to this Section 9.06 of an instrument of resignation or
removal, the Delaware Trustee resigning or being removed, as applicable, may
petition, at the expense of the Sponsor, any court of competent jurisdiction for
appointment of a Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Delaware Trustee.
(e) No Delaware Trustee shall be liable for the acts or omissions to
act of any Successor Delaware Trustee, as the case may be.
(f) Notwithstanding the foregoing or any other provision of this
Agreement, in the event a Regular Trustee or a Delaware Trustee who is a natural
person dies or becomes, solely in the opinion of the Sponsor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Sponsor (with the successor in each case being a Person who
satisfies the eligibility requirement for the Regular Trustee or the Delaware
Trustee, as the case may be, set forth in Section 9.05).
(g) The indemnity provided to a Trustee under Section 9.04 shall
survive any Trustee's resignation or removal and the termination of this
Agreement.
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Section 9.07 Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a Successor Trustee,
such Successor Trustee so appointed shall execute, acknowledge and deliver to
the Trust and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers and duties of the
retiring Trustee; but, on the request of the Sponsor or the Successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such Successor Trustee all the rights and powers of
the retiring Trustee.
(b) No Successor Trustee shall accept its appointment unless at the
time of such acceptance such Successor Trustee shall be qualified and eligible
under this Article IX.
Section 9.08 Merger, Conversion, Consolidation or Succession to
Business
Any Person into which the Delaware Trustee or the Regular Trustee
that is not a natural person may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee hereunder,
provided such Person shall be otherwise qualified and eligible under this
Article IX, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. Section 9.09 Number of Trustees
(a) The number of Trustees shall be two, provided that the Sponsor
may increase or decrease the number of Regular Trustees.
(b) If a Trustee ceases to hold office for any reason and the number
of Regular Trustees is not reduced pursuant to Section 9.09(a), or if the number
of Trustees is increased pursuant to Section 9.09(a), a vacancy shall occur. The
vacancy shall be filled by a Successor Trustee appointed in accordance with
Section 9.06.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust.
Section 9.10 Delegation of Power
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.09(a).
(b) The Regular Trustee shall have power to delegate from time to
time to such of their number or to the Sponsor the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Regular Trustee or otherwise as the Regular Trustee may deem expedient, to
the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
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Section 9.11 Appointment of Regular Trustees
(a) The Regular Trustee shall be Xxxxx Xxxxxx, an individual and his
successor shall be appointed by the Sponsor. Upon any resignation or removal,
the Sponsor shall appoint a successor Regular Trustee.
(b) Whenever a vacancy in the number of Regular Trustees shall
occur, until such vacancy is filled by the appointment of a Regular Trustee in
accordance with this Section 9.11 or Section 9.06, the Regular Trustees in
office, if any, regardless of their number (and not withstanding any other
provision of this Agreement), shall have all the powers granted to the Regular
Trustee and shall discharge all the duties imposed upon the Regular Trustee by
this Agreement.
ARTICLE X
TERMINATION AND DISSOLUTION
Section 10.01 Termination or Dissolution
Unless terminated as provided herein, the Trust shall continue
without limitation of time. If an Early Termination Event specified in Section
10.04 occurs, the Trust shall be dissolved, and one Sponsor Share shall be
distributed to each Shareholder in exchange for each outstanding Share.
Section 10.02 Circumstances Under Which Shares Will Be Exchanged for
Sponsor Shares
In the event that the Sponsor, acting through the Board of
Directors, (i) determines that either (A) the Trust or the Sponsor, or both, is,
or is reasonably likely to be, treated as a corporation for U.S. federal income
tax purposes, (B) the Trust is, or is reasonably likely to be, required to issue
Schedules K-1 to Shareholders or (C) the existence of the Trust otherwise
results, or is reasonably likely to result, in a material tax detriment to the
Trust, Shareholders, the Sponsor or any Member of the Sponsor and (ii) obtains
an opinion of counsel of national reputation to such effect, the Sponsor, acting
through the Board of Directors (a) shall declare a record date and deliver a
mandatory instruction to the Regular Trustee, together with any opinions of
counsel or officers' certificates of the Sponsor as the Regular Trustee may
reasonably request, directing the Regular Trustee to (i) deliver one Sponsor
Share to each Shareholder in exchange for such outstanding Share (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 Shareholders at least thirty (30) days prior
to the Mandatory Exchange. Simultaneously with the completion of such Mandatory
Exchange, each Shareholder immediately prior to the completion of the Mandatory
Exchange shall be admitted to the Sponsor as a Shareholder in respect of an
equal number of Sponsor Shares previously held by the Trust and each Shareholder
shall be issued a certificate evidencing the same, in accordance with the
provisions of the Sponsor Agreement. Immediately whereafter the Trust shall be
deemed withdrawn from the Sponsor as a Shareholder in respect of such Sponsor
Share(s), and the Trust shall tender its certificates evidencing Sponsor Shares
to the Transfer Agent for cancelation.
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Section 10.03 Right to Acquisition Exchange
If at any time one Person is the beneficial holder of more than
ninety percent (90%) of the then outstanding Shares (the "Acquirer"), such
Acquirer shall then have the right to direct the Sponsor, acting through the
Board of Directors, to (i) declare a record date and deliver a mandatory
instruction to the Regular Trustee directing the Regular Trustee to (A) deliver
the Sponsor Shares to Shareholders, including the Acquirer, in exchange for all
of the outstanding Shares (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 Shareholders at
least thirty (30) days prior to the Acquisition Exchange. Simultaneously with
the completion of such Acquisition Exchange, each Shareholder immediately prior
to the completion of the Acquisition Exchange shall be admitted to the Sponsor
as a Shareholder in respect of an equal number of Sponsor Shares previously held
by the Trust and shall be issued a certificate evidencing the same, in
accordance with the provisions of the Sponsor Agreement, immediately whereafter
the Trust shall be deemed withdrawn from the Sponsor as a Shareholder in respect
of such Sponsor Share(s), and the Trust shall tender its certificates evidencing
Sponsor Shares to the Sponsor for cancelation.
Section 10.04 Early Termination
The Trust shall dissolve upon the first to occur of any of the
following events (each an "Early Termination Event"):
(a) the occurrence of a Mandatory Exchange or an Acquisition
Exchange;
(b) the dissolution or liquidation of the Sponsor;
(c) receipt by the Regular Trustee of written notice from the
Sponsor at any time (which notice is optional and wholly within the
discretion of the Sponsor) of its intention to dissolve the Trust and
distribute the Sponsor Shares in exchange for the Shares; or
(d) an order for dissolution of the Trust shall have been entered by
a court of competent jurisdiction.
Section 10.05 Termination of Obligations
The respective obligations and responsibilities of the Trustees and
the Trust continued hereby shall terminate upon the latest to occur of the
following:
(a) the payment of all expenses owed by the Trust;
(b) the discharge of all administrative duties of the Regular
Trustee; and
(c) the filing of a certificate of cancelation canceling the Trust's
certificate of trust with the Secretary of State of the State of Delaware
by the Regular Trustee.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Limitation of Rights of Shareholders
The death or incapacity of any person having an interest, beneficial
or otherwise, in Shares shall not operate to terminate this Agreement, nor
entitle the legal representatives or heirs of such person or any Shareholder for
such person to claim an accounting, take any action or bring any proceeding in
any court for a partition or winding-up of the arrangements contemplated hereby,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
Section 11.02 Amendment
This Agreement may be amended from time to time by the Sponsor,
acting through the Board of Directors, and by the Regular Trustee at the
direction of the Sponsor, acting through the Board of Directors; provided,
however, that no such amendment shall alter the rights, powers or immunities of
the Delaware Trustee without its written consent. Notwithstanding any other
provisions of this Agreement, the Sponsor shall not, and no Trustee shall, (i)
enter into or consent to any amendment to this Agreement which would cause the
Trust to fail or cease to qualify for the exemption from the status of an
"investment company" under the 1940 Act or be classified as other than a grantor
trust for U.S. federal income tax purposes, (ii) cause the Trust to issue a
class of equity securities other than the Shares or issue any debt securities or
any derivative securities or amend the provision of Section 2.05 of this
Agreement prohibiting such issuance or (iii) enter into or consent to any
amendment to this Agreement that would affect the exclusive and absolute right
of the Shareholders to direct the voting of the Trust, as Member of the Sponsor,
pursuant to Section 5.05 of this Agreement, with respect to all matters reserved
for the vote of Members pursuant to the provisions of the Sponsor Agreement;
provided, however, that Section 2.05 and this Section 11.02 of this Agreement
may not be amended without the affirmative vote of a majority of the Shares
present in person or represented by proxy at a meeting of Shareholders.
Section 11.03 Separability
In case any provision in this Agreement or in the Share Certificates
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 11.04 Specific Performance
The Sponsor and the Trustees agree that each party to this Agreement
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 party may be
entitled, at law or in equity, each nonbreaching party 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.
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Section 11.05 Governing Law
This Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE PARTIES
HEREUNDER OR THIS AGREEMENT ANY PROVISION OF THE LAWS (COMMON OR STATUTORY) OF
THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A
MANNER INCONSISTENT WITH THE TERMS HEREOF, (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR AUTHORITIES AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR
REFERENCED IN THIS AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE
SHALL NOT APPLY TO THE TRUST.
Section 11.06 Successors
This Agreement shall be binding upon and shall inure to the benefit
of any successor to the Sponsor, the Trust or the Relevant Trustee, including
any successor by operation of law.
Section 11.07 Headings
The Article and Section headings are for convenience only and shall
not affect the construction of this Agreement.
Section 11.08 Reports, Notices and Demands
(a) Any report, notice, demand or other communications which by any
provision of this Agreement is required or permitted to be given or served to or
upon any Shareholder or the Sponsor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Shareholder, to such Shareholder as such Shareholder's name and address may
appear on the Share Register; with a copy to Potter Xxxxxxxx & Xxxxxxx LLP, X.X.
Xxx 000, Xxxxxxxxxx, XX 00000; Attention: Xxxxx X. Xxxxxx and (b) in the case of
the Sponsor, to Macquarie Infrastructure Company LLC, 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Xxxxx Xxxxxxxx or to such other
address as such Person may from time to time specify by notice to the other
parties hereto. Such notice, demand or other communication to or
32
upon a Shareholder shall be deemed to have been sufficiently given, or made, for
all purposes, upon hand delivery, mailing or transmission.
(b) Any notice, demand or other communication which by any provision
of this Agreement is required or permitted to be given or served to or upon the
Trust, the Delaware Trustee or the Regular Trustee shall be given in writing
(which may be by facsimile transmission) addressed (until another address is
published by the Trust) as follows: (a) with respect to the Delaware Trustee, to
Xxxxx Fargo Delaware Trust Company, 000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Services, and (b) with respect to the Regular
Trustee, to him at the address for notices to the Sponsor, marked "Attention:
Xxxxx Xxxxxx." Such notice, demand or other communication to or upon the Trust
shall be deemed to have been sufficiently given or made only upon actual receipt
of the writing by the Trust.
Section 11.09 Counterparts
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
MACQUARIE INFRASTRUCTURE COMPANY LLC,
as Sponsor
By: _________________________________
Name:____________________________
Title:___________________________
XXXXX FARGO DELAWARE TRUST COMPANY,
as Delaware Trustee
By: _________________________________
Name:____________________________
Title:___________________________
_____________________________________
Xxxxx Xxxxxx, as Regular Trustee
34
EXHIBIT A - FORM OF SHARE CERTIFICATE
SPECIMEN
NUMBER SHARES
CREATED UNDER THE LAWS
OF
THE STATE OF DELAWARE
MACQUARIE INFRASTRUCTURE COMPANY TRUST
This Certifies that ______ is the owner of Shares of _______ the Trust with such
rights and privileges as are set forth in the Amended & Restated Trust Agreement
of the Trust dated ____, 2004 (the "Trust Agreement"), as it may be amended from
time to time.
[THE SHARES 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 SHARES 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 SHARES 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 SHARES REPRESENTED BY THIS CERTIFICATE EVIDENCE THE PROPORTIONATE PORTION OF
SUCH HOLDER'S SHARES IN THE TRUST. A STATEMENT OF THE RELATIVE RIGHTS AND
PREFERENCES OF THE TRUST'S SHARES WILL BE FURNISHED BY THE TRUST TO THE HOLDER
HEREOF UPON REQUEST WITHOUT CHARGE.
IN WITNESS WHEREOF, said Trust has caused this Certificate to be signed by
its Regular Trustee this _____ day of _________, A.D. 2004.
____________________________
Name: Xxxxx Xxxxxx
Title: Regular Trustee
A-2
EXHIBIT B
FORM OF ECONOMIC
DISCLOSURE STATEMENT
AND AFFIDAVIT
FOR CITY USE
AFFIDAVIT NO. _________
CITY OF CHICAGO
ECONOMIC DISCLOSURE STATEMENT AND AFFIDAVIT
The City of Chicago (the "City") requires disclosure of the information
requested in this Economic Disclosure Statement and Affidavit ("EDS") before any
City agency, department or City Council action regarding the matter that is the
subject of this EDS. Please fully complete each statement, with all information
current as of the date this EDS is signed. If a question is not applicable,
answer with "N.A." AN INCOMPLETE EDS WILL BE RETURNED AND ANY CITY ACTION WILL
BE INTERRUPTED.
Please PRINT OR TYPE all responses clearly and legibly. Add additional pages if
needed, being careful to identify the portion of the EDS to which each
additional page refers.
WHO MUST SUBMIT AN EDS:
1. APPLICANTS: Any individual or entity (the "APPLICANT") making an application
to the City for action requiring City Council or other City agency approval must
file this EDS.
2. ENTITIES HOLDING AN INTEREST IN THE APPLICANT: Generally, whenever an
ownership interest in the Applicant (for example, shares of stock of the
Applicant or a limited partnership interest in the Applicant) is held or owned
by a legal entity (for example, a corporation or partnership, rather than an
individual) each such legal entity must also file an EDS on its own behalf, and
any parent of that legal entity must do so until individual owners are
disclosed. HOWEVER, if an entity filing an EDS is a corporation whose shares are
registered on a national securities exchange pursuant to the Securities Exchange
Act of 1934, only those shareholders that own 10% or more of that filing
entity's stock must file EDSs on their own behalf.
ACKNOWLEDGMENT OF POSSIBLE CREDIT AND OTHER CHECKS: By completing and filing
this EDS, the Undersigned acknowledges and agrees, on behalf of itself and the
entities or individuals named in this EDS, that the City may investigate the
creditworthiness of some or all of the entities or individuals named in this
EDS.
CERTIFYING THIS EDS: Execute the certification on the date of the initial
submission of this EDS. YOU MAY BE ASKED TO RE-CERTIFY THIS EDS ON THE LAST PAGE
AS OF THE DATE OF SUBMISSION OF ANY RELATED ORDINANCE TO THE CITY COUNCIL, OR AS
OF THE DATE OF THE CLOSING OF YOUR TRANSACTION.
PUBLIC DISCLOSURE: IT IS THE CITY'S POLICY TO MAKE THIS DOCUMENT AVAILABLE TO
THE PUBLIC ON ITS INTERNET SITE AND/OR UPON REQUEST.
GENERAL INFORMATION
Date this EDS is completed:
_______________________________________________________
A. WHO IS SUBMITTING THIS EDS? That individual or entity will be the
"UNDERSIGNED" throughout this EDS.
__________________________________
NOTE: THE UNDERSIGNED IS THE INDIVIDUAL OR ENTITY SUBMITTING THIS EDS, WHETHER
THE UNDERSIGNED IS AN APPLICANT OR IS AN ENTITY HOLDING AN INTEREST IN THE
APPLICANT. THIS EDS REQUIRES CERTAIN DISCLOSURES AND CERTIFICATIONS FROM
APPLICANTS THAT ARE NOT REQUIRED FROM ENTITIES HOLDING AN INTEREST IN THE
APPLICANT. WHEN COMPLETING THIS EDS, PLEASE OBSERVE WHETHER THE SECTION YOU ARE
COMPLETING APPLIES ONLY TO APPLICANTS.
[ ] Check here if the Undersigned is filing this EDS as an Applicant.
[ ] Check here if the Undersigned is filing as an entity holding an interest in
an Applicant.
Also, please identify the Applicant in which this entity holds an interest:
_______________________________________________________
B. Business address of the Undersigned: _______________________________________
_______________________________________
_______________________________________
C. Telephone: ________________ Fax: ________________ Email: ____________________
D. Name of contact person: _______________________________________
E. Tax identification number (optional): _______________________________________
F. Brief description of contract, transaction or other undertaking (referred to
below as the "Matter") to which this EDS pertains. (Include project number
and location if applicable):
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
G. Is the Matter a procurement? [ ] Yes [ ] No
H. If a procurement, Specification # ____________ and Contract # ______________.
I. If not a procurement:
1. City Agency requesting EDS: ___________________________________________
2. City action requested (e.g., loan, grant, sale of property):
__________________________________________________________________________
3. If property involved, list property location:
__________________________________________________________________________
SECTION ONE: DISCLOSURE OF OWNERSHIP INTERESTS
A. NATURE OF ENTITY
1. Indicate whether the Undersigned is an individual or legal entity:
[ ] Individual [ ] Limited Liability Company
[ ] Business corporation [ ] Joint venture
[ ] Sole proprietorship [ ] Not-for-profit corporation
(Is the not-for-profit corporation also a
501(c)(3)?)
[ ] Yes [ ] No
[ ] General partnership [ ] Other entity (please specify)
[ ] Limited partnership ____________________________________________________
2. State of incorporation or organization, if applicable: ____________________
3. For legal entities not organized in the State of Illinois: Is the
organization authorized to do business in the State of Illinois as a
foreign entity?
[ ] Yes [ ] No [ ] N/A
B. ORGANIZATION INFORMATION
1. IF THE UNDERSIGNED IS A CORPORATION:
a. List below the names and titles of all executive officers and all directors
of the corporation. For not-for-profit corporations, also list below any
executive director of the corporation, and indicate all members, if any, who are
legal entities. If there are no such members, write "no members."
NAME TITLE
--------------------------------------------- -------------------------
--------------------------------------------- -------------------------
--------------------------------------------- -------------------------
--------------------------------------------- -------------------------
b(1). If the Matter IS a procurement and the Undersigned is a corporation whose
shares ARE registered on a national securities exchange pursuant to the
Securities Exchange Act of 1934, please provide the following information
concerning shareholders who own shares equal to or in excess of 7.5% of the
corporation's outstanding shares.
NAME BUSINESS ADDRESS PERCENTAGE INTEREST
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
b(2). If the Matter IS NOT a procurement, and the Undersigned is a corporation
whose shares ARE registered on a national securities exchange pursuant to the
Securities Exchange Act of 1934, please provide the following information
concerning shareholders who own shares equal to or in excess of 10% of the
corporation's outstanding shares.
NAME BUSINESS ADDRESS PERCENTAGE INTEREST
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
c. For corporations that ARE NOT registered on a national securities exchange
pursuant to the Securities Exchange Act of 1934, list below the
name, business address and percentage of ownership interest of each shareholder.
NAME BUSINESS ADDRESS PERCENTAGE INTEREST
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
2. IF THE UNDERSIGNED IS A PARTNERSHIP OR JOINT VENTURE: For general or limited
partnerships or joint ventures: list below the name, business address and
percentage of ownership interest of each partner. For limited partnerships,
indicate whether each partner is a general partner or a limited partner.
NAME BUSINESS ADDRESS PERCENTAGE INTEREST
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
3. IF THE UNDERSIGNED IS A LIMITED LIABILITY COMPANY:
a. List below the name, business address and percentage of ownership interest of
each (i) member and (ii) manager. If there are no managers, write "no managers,"
and indicate how the company is managed.
NAME BUSINESS ADDRESS PERCENTAGE INTEREST
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
b. List below the names and titles of all officers, if any. If there are no
officers, write "no officers."
NAME TITLE
--------------------------------------------- -------------------------
--------------------------------------------- -------------------------
--------------------------------------------- -------------------------
--------------------------------------------- -------------------------
4. IF THE UNDERSIGNED IS A LAND TRUST, BUSINESS TRUST, ESTATE OR OTHER SIMILAR
ENTITY:
a. List below the name and business address of each individual or legal entity
holding legal title to the property that is the subject of the trust.
NAME BUSINESS ADDRESS
--------------------------------------------- -------------------------
--------------------------------------------- -------------------------
--------------------------------------------- -------------------------
--------------------------------------------- -------------------------
b. List below the name, business address and percentage of beneficial interest
of each beneficiary on whose behalf title is held.
NAME BUSINESS ADDRESS PERCENTAGE INTEREST
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
5. IF THE UNDERSIGNED IS ANY OTHER LEGAL ENTITY: First describe the entity, then
provide the name, business address, and the percentage of interest of all
individuals or legal entities having an ownership or other beneficial interest
in the entity. Describe the entity:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NAME BUSINESS ADDRESS PERCENTAGE INTEREST
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
------------------------------ ----------------------- -------------------
SECTION TWO: BUSINESS RELATIONSHIPS WITH CITY ELECTED OFFICIALS
A. DEFINITIONS AND DISCLOSURE REQUIREMENT
1. The Undersigned must indicate whether it had a "business relationship" with a
City elected official in the 12 months before the date this EDS is signed.
2. Pursuant to Chapter 2-156 of the Municipal Code of Chicago (the "Municipal
Code"), a "BUSINESS RELATIONSHIP" means any "contractual or other private
business dealing" of an official, or his or her spouse, or of any entity in
which an official or his or her spouse has a "financial interest," with a person
or entity which entitles an official to compensation or payment in the amount of
$2,500 or more in a calendar year; but a "financial interest" does not include:
(i) any ownership through purchase at fair market value or inheritance of less
than 1% of the shares of a corporation, or any corporate subsidiary, parent or
affiliate thereof, regardless of the value of or dividends on such shares, if
such shares are registered on a securities exchange pursuant to the Securities
Exchange Act of 1934, as amended, (ii) the authorized compensation paid to an
official or employee for his office or employment; (iii) any economic benefit
provided equally to all residents of the City; (iv) a time or demand deposit in
a financial institution; or (v) an endowment or insurance policy or annuity
contract purchased from an insurance company. A "contractual or other private
business dealing" does not include any employment relationship of an official's
spouse with an entity when such spouse has no discretion concerning or input
relating to the relationship between that entity and the City.
B. CERTIFICATION
1. Has the Undersigned had a "business relationship" with any City elected
official in the 12 months before the date this EDS is signed?
[ ] Yes [ ] No
If yes, please identify below the name(s) of such City elected official(s)
and describe such relationship(s):
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SECTION THREE: DISCLOSURE OF RETAINED PARTIES
A. DEFINITIONS AND DISCLOSURE REQUIREMENTS
1. The Undersigned must disclose certain information about attorneys, lobbyists,
accountants, consultants, subcontractors, and any other person whom the
Undersigned has retained or expects to retain in connection with the Matter. In
particular, the Undersigned must disclose the name of each such person, his/her
business address, the nature of the relationship, and the total amount of the
fees paid or estimated to be paid. The Undersigned is not required to disclose
employees who are paid solely through the Undersigned's regular payroll.
"Lobbyist" means any person (i) who, for compensation or on behalf of any person
other than himself, undertakes to influence any legislative or administrative
action, or (ii) any part of whose duty as an employee of another includes
undertaking to influence any legislative or administrative action.
2. If the Undersigned is uncertain whether a disclosure is required under this
Section, the Undersigned must either ask the City whether disclosure is required
or make the disclosure.
B. CERTIFICATION
Each and every attorney, lobbyist, accountant, consultant, subcontractor, or
other person retained or anticipated to be retained directly by the Undersigned
with respect to or in connection with the Matter is listed below [begin list
here, add sheets as necessary]:
NAME BUSINESS RELATIONSHIP TO UNDERSIGNED FEES (INDICATE WHETHER
(INDICATE ADDRESS (ATTORNEY, LOBBYIST, ETC.) PAID OR ESTIMATED)
WHETHER
RETAINED OR
ANTICIPATED TO
BE RETAINED)
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
[ ] CHECK HERE IF NO SUCH INDIVIDUALS HAVE BEEN RETAINED BY THE UNDERSIGNED OR
ARE ANTICIPATED TO BE RETAINED BY THE UNDERSIGNED.
SECTION FOUR: CERTIFICATIONS
I. CERTIFICATION OF COMPLIANCE
For purposes of the certifications in A, B, and C below, the term "affiliate"
means any individual or entity that, directly or indirectly: controls the
Undersigned, is controlled by the Undersigned, or is, with the Undersigned,
under common control of another individual or entity. Indicia of control
include, without limitation: interlocking management or ownership; identity of
interests among family members; shared facilities and equipment; common use of
employees; or organization of a business entity following the ineligibility of a
business entity to do business with the federal government or a state or local
government, including the City, using substantially the same management,
ownership, or principals as the ineligible entity.
A. The Undersigned is not delinquent in the payment of any tax administered by
the Illinois Department of Revenue, nor are the Undersigned or its affiliates
delinquent in paying any fine, fee, tax or other charge owed to the City. This
includes all water charges, sewer charges, license fees, parking tickets,
property taxes or sales taxes. If there are any such delinquencies, note them
below:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
If the letters "NA," the word "None," or no response appears on the lines above,
it will be conclusively presumed that the Undersigned certified to the above
statements.
B. The Undersigned and its affiliates have not, in the past five years, been
found in violation of any City, state or federal environmental law or
regulation. If there have been any such violations, note them below:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
If the letters "NA," the word "None," or no response appears on the lines above,
it will be conclusively presumed that the Undersigned certified to the above
statements.
C. If the Undersigned is the Applicant, the Undersigned and its affiliates will
not use, nor permit their subcontractors to use, any facility on the U.S. EPA's
List of Violating Facilities in connection with the Matter for the duration of
time that such facility remains on the list.
D. If the Undersigned is the Applicant, the Undersigned will obtain from any
contractors/subcontractors hired or to be hired in connection with the Matter
certifications equal in form and substance to those in Section Four, I, (A-C)
above and will not, without the prior written consent of the City, use any such
contractor/subcontractor that does not provide such certifications or that the
Undersigned has reason to believe has not provided or cannot provide truthful
certifications.
If the Undersigned is unable to make the certifications required in Section
Four, paragraph I(C) and (D) above, provide an explanation:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
If the letters "NA," the word "None," or no response appears on the lines above,
it will be conclusively presumed that the Undersigned certified to the above
statements.
II. CHILD SUPPORT OBLIGATIONS -- CERTIFICATION REGARDING COURT -- ORDERED CHILD
SUPPORT COMPLIANCE
For purposes of this part, "Substantial Owner" means any individual who,
directly or indirectly, owns or holds a 10% or more interest in the Undersigned.
Note: This may include individuals disclosed in Section One (Disclosure of
Ownership Interests), and individuals disclosed in an EDS filed by an entity
holding an interest in the Applicant.
If the Undersigned's response below is #1 or #2, then all of the Undersigned's
Substantial Owners must remain in compliance with any such child support
obligations until the Matter is completed. Failure of the Undersigned's
Substantial Owners to remain in compliance with their child support obligations
in the manner set forth in either #1 or #2 constitutes an event of default.
CHECK ONE:
________ 1. No Substantial Owner has been declared in arrearage on any child
support obligations by the Circuit Court of Xxxx County, Illinois or
by another Illinois court of competent jurisdiction.
________ 2. The Circuit Court of Xxxx County, Illinois or another Illinois
court of competent jurisdiction has issued an order declaring one or
more Substantial Owners in arrearage on child support obligations.
All such Substantial Owners, however, have entered into
court-approved agreements for the payment of all such child support
owed, AND all such Substantial Owners are in compliance with such
agreements.
________ 3. The Circuit Court of Xxxx County, Illinois or another Illinois
court of competent jurisdiction has issued an order declaring one or
more Substantial Owners in arrearage on child support obligations
AND (a) at least one such Substantial Owner has not entered into a
court-approved agreement for the payment of all such child support
owed; OR (b) at least one such Substantial Owner is not in
compliance with a court-approved agreement for the payment of all
such child support owed; OR both (a) and (b).
________ 4. There are no Substantial Owners.
III. FURTHER CERTIFICATIONS
A. The Undersigned and, if the Undersigned is a legal entity, its principals
(officers, directors, partners, members, managers, executive director):
1. are not presently debarred, suspended, proposed for debarment,
declared ineligible or voluntarily excluded from any transactions by
any federal, state or local unit of government;
2. have not, within a five-year period preceding the date of this EDS,
been convicted of a criminal offense, adjudged guilty, or had a
civil judgment rendered against them in connection with: obtaining,
attempting to obtain, or performing a public (federal, state or
local) transaction or contract under a public transaction; a
violation of federal or state antitrust statutes; fraud;
embezzlement; theft; forgery; bribery; falsification or destruction
of records; making false statements; or receiving stolen property;
3. are not presently indicted for or otherwise criminally or civilly
charged by a governmental entity (federal, state or local) with
commission of any of the offenses enumerated in clause (A)(2) of
this section;
4. have not, within a five-year period preceding the date of this EDS,
had one or more public transactions (federal, state or local)
terminated for cause or default; and
5. have not, within a five-year period preceding the date of this EDS,
been convicted, adjudged guilty, or found liable in a civil
proceeding, in any criminal or civil action instituted by the City
or by the federal government, any state, or any other unit of local
government.
B. The certifications in subparts B and D concern:
- the Undersigned;
- any party participating in the performance of the Matter ("an
APPLICABLE PARTY");
- any "AFFILIATED ENTITY" (meaning an individual or entity that,
directly or indirectly: controls the Undersigned, is controlled by
the Undersigned, or is, with the Undersigned, under common control
of another individual or entity. Indicia of control include, without
limitation: interlocking management or ownership; identity of
interests among family members, shared facilities and equipment;
common use of employees; or organization of a business entity
following the ineligibility of a business entity to do business with
federal or state or local government, including the City, using
substantially the same management, ownership, or principals as the
ineligible entity); with respect to Applicable Parties, the term
Affiliated Entity means an individual or entity that directly or
indirectly controls the Applicable Party, is controlled by it, or,
with the Applicable Party, is under common control of another
individual or entity;
- any responsible official of the Undersigned, any Applicable Party or
any Affiliated Entity or any other official, agent or employee of
the Undersigned, any Applicable Party or any Affiliated Entity,
acting pursuant to the direction or authorization of a responsible
official of the Undersigned, any Applicable Party or any Affiliated
Entity (collectively "Agents").
Neither the Undersigned, nor any Applicable Party, nor any Affiliated
Entity of either the Undersigned or any Applicable Party nor any Agents
have, during the five years before the date this EDS is signed, or, with
respect to an Applicable Party, an Affiliated Entity, or an Affiliated
Entity of an Applicable Party during the five years before the date of
such Applicable Party's or Affiliated Entity's contract or engagement in
connection with the Matter:
1. bribed or attempted to bribe, or been convicted or adjudged guilty
of bribery or attempting to bribe, a public officer or employee of
the City, the State of Illinois, or any agency of the federal
government
or of any state or local government in the United States of America,
in that officer's or employee's official capacity;
2. agreed or colluded with other bidders or prospective bidders, or
been a party to any such agreement, or been convicted or adjudged
guilty of agreement or collusion among bidders or prospective
bidders, in restraint of freedom of competition by agreement to bid
a fixed price or otherwise;
3. made an admission of such conduct described in (1) or (2) above that
is a matter of record, but have not been prosecuted for such
conduct; or
4. violated the provisions of Section 2-92-610 of the Municipal Code
(LIVING WAGE ORDINANCE).
C. The Undersigned understands and shall comply with (1) the applicable
requirements of the Governmental Ethics Ordinance of the City, Title 2,
Chapter 2-156 of the Municipal Code; and (2) all the applicable provisions
of Chapter 2-56 of the Municipal Code (Office of the Inspector General).
D. Neither the Undersigned, Affiliated Entity or Applicable Party, or any of
their employees, officials, agents or partners, is barred from contracting
with any unit of state or local government as a result of engaging in or
being convicted of (1) bid-rigging in violation of 720 ILCS 5/33E-3; (2)
bid-rotating in violation of 720 ILCS 5/33E-4; or (3) any similar offense
of any state or of the United States of America that contains the same
elements as the offense of bid-rigging or bid-rotating.
E. If the Undersigned is unable to certify to any of the above statements in
this Part III, the Undersigned must explain below:
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If the letters "NA," the word "None," or no response appears on the lines above,
it will be conclusively presumed that the Undersigned certified to the above
statements.
IV. CERTIFICATION OF STATUS AS FINANCIAL INSTITUTION
For purposes of this Part IV, under Section 2-32-455(b) of the Municipal Code,
the term "financial institution" means a bank, savings and loan association,
thrift, credit union, mortgage banker, mortgage broker, trust company, savings
bank, investment bank, securities broker, municipal securities broker,
securities dealer, municipal securities dealer, securities underwriter,
municipal securities underwriter, investment trust, venture capital company,
bank holding company, financial services holding company, or any licensee under
the Consumer Installment Loan Act, the Sales Finance Agency Act, or the
Residential Mortgage Licensing Act. However, "financial institution"
specifically shall not include any entity whose predominant business is the
providing of tax deferred, defined contribution, pension plans to public
employees in accordance with Sections 403(b) and 457 of the Internal Revenue
Code. [Additional definitions may be found in Section 2-32-455(b) of the
Municipal Code.]
A. CERTIFICATION
The Undersigned certifies that the Undersigned [check one]
_________ is
_________ is not
a "financial institution" as defined in Section 2-32-455(b) of the Municipal
Code.
B. IF THE UNDERSIGNED IS A FINANCIAL INSTITUTION, THEN THE UNDERSIGNED PLEDGES:
"We are not and will not become a predatory lender as defined in Chapter
2-32 of the Municipal Code. We further pledge that none of our affiliates
is, and none of them will become, a predatory lender as defined in Chapter
2-32 of the Municipal Code. We understand that becoming a predatory lender
or becoming an affiliate of a predatory lender may result in the loss of
the privilege of doing business with the City."
If the Undersigned is unable to make this pledge because it or any of its
affiliates (as defined in Section 2-32-455(b) of the Municipal Code) is a
predatory lender within the meaning of Chapter 2-32 of the Municipal Code,
explain here (attach additional pages if necessary):
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If the letters "NA," the word "None," or no response appears on the lines above,
it will be conclusively presumed that the Undersigned certified to the above
statements.
V. CERTIFICATION REGARDING INTEREST IN CITY BUSINESS
Any words or terms that are defined in Chapter 2-156 of the Municipal Code have
the same meanings when used in this Part V.
1. In accordance with Section 0-000-000 of the Municipal Code: Does any
official or employee of the City have a financial interest in his or her
own name or in the name of any other person in the Matter?
[ ] Yes [ ] No
NOTE: IF YOU ANSWERED "NO" TO ITEM V(1), YOU ARE NOT REQUIRED TO ANSWER ITEMS
V(2) OR (3) BELOW. INSTEAD, REVIEW THE CERTIFICATION IN ITEM V(4) AND THEN
PROCEED TO PART VI. IF YOU ANSWERED "YES" TO ITEM V(1), YOU MUST FIRST RESPOND
TO ITEM V(2) AND PROVIDE THE INFORMATION REQUESTED IN ITEM V(3). AFTER
RESPONDING TO THOSE ITEMS, REVIEW THE CERTIFICATION IN ITEM V(4) AND PROCEED TO
PART VI.
2. Unless sold pursuant to a process of competitive bidding, no City elected
official or employee shall have a financial interest in his or her own
name or in the name of any other person in the purchase of any property
that (i) belongs to the City, or (ii) is sold for taxes or assessments, or
(iii) is sold by virtue of legal process at the suit of the City
(collectively, "City Property Sale"). Compensation for property taken
pursuant to the City's eminent domain power does not constitute a
financial interest within the meaning of this Part V.
Does the Matter involve a City Property Sale?
[ ] Yes [ ] No
3. If you answered "YES" to Item V(1), provide the names and business
addresses of the City officials or employees having such interest and
identify the nature of such interest:
NAME BUSINESS ADDRESS NATURE OF INTEREST
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4. The Undersigned further certifies that no prohibited financial interest in
the Matter will be acquired by any City official or employee.
VI. CERTIFICATION REGARDING SLAVERY ERA BUSINESS
The Undersigned has searched any and all records of the Undersigned and any and
all predecessor entities for records of investments or profits from slavery, the
slave industry, or slaveholder insurance policies from the slavery era
(including insurance policies issued to slaveholders that provided coverage for
damage to or injury or death of their slaves) and has disclosed in this EDS any
and all such records to the City. In addition, the Undersigned must disclose the
names of any and all slaves or slaveholders described in those records. Failure
to comply with these disclosure requirements may make the Matter to which this
EDS pertains voidable by the City.
PLEASE CHECK EITHER (1) OR (2) BELOW. IF THE UNDERSIGNED CHECKS (2), THE
UNDERSIGNED MUST DISCLOSE BELOW OR IN AN ATTACHMENT TO THIS EDS ALL REQUISITE
INFORMATION AS SET FORTH IN THAT PARAGRAPH (2).
_____ 1. The Undersigned verifies that (a) the Undersigned has searched any and
all records of the Undersigned and any and all predecessor entities for records
of investments or profits from slavery, the slave industry, or slaveholder
insurance policies, and (b) the Undersigned has found no records of investments
or profits from slavery, the slave industry, or slaveholder insurance policies
and no records of names of any slaves or slaveholders.
_____ 2. The Undersigned verifies that, as a result of conducting the search in
step (1)(a) above, the Undersigned has found records relating to investments or
profits from slavery, the slave industry, or slaveholder insurance policies
and/or the names of any slaves or slaveholders. The Undersigned verifies that
the following constitutes full disclosure of all such records:
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SECTION FIVE: CERTIFICATIONS FOR FEDERALLY-FUNDED MATTERS
I. CERTIFICATION REGARDING LOBBYING
A. List below the names of all individuals registered under the federal Lobbying
Disclosure Act of 1995 who have made lobbying contacts on behalf of
the Undersigned with respect to the Matter: [Begin list here, add sheets as
necessary]:
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[IF NO EXPLANATION APPEARS OR BEGINS ON THE LINES ABOVE, OR IF THE LETTERS "NA"
OR IF THE WORD "NONE" APPEAR, IT WILL BE CONCLUSIVELY PRESUMED THAT THE
UNDERSIGNED MEANS THAT NO INDIVIDUALS REGISTERED UNDER THE LOBBYING DISCLOSURE
ACT OF 1995 HAVE MADE LOBBYING CONTACTS ON BEHALF OF THE UNDERSIGNED WITH
RESPECT TO THE MATTER.]
B. The Undersigned has not spent and will not expend any federally appropriated
funds to pay any individual listed in Paragraph (A) above for his or her
lobbying activities or to pay any individual to influence or attempt to
influence an officer or employee of any agency, as defined by applicable federal
law, a member of Congress, an officer or employee of Congress, or an employee of
a member of Congress, in connection with the award of any federally funded
contract, making any federally funded grant or loan, entering into any
cooperative agreement, or to extend, continue, renew, amend, or modify any
federally funded contract, grant, loan, or cooperative agreement.
C. The Undersigned will submit an updated certification at the end of each
calendar quarter in which there occurs any event that materially affects the
accuracy of the statements and information set forth in paragraphs I(A) and I(B)
above.
If the Matter is federally funded and any funds other than federally
appropriated funds have been or will be paid to any individual for influencing
or attempting to influence an officer or employee of any agency (as defined by
applicable federal law), a member of Congress, an officer or employee of
Congress, or an employee of a member of Congress in connection with the Matter,
the Undersigned must complete and submit Standard Form-LLL, "Disclosure Form to
Report Lobbying," in accordance with its instructions. The form may be obtained
online from the federal Office of Management and Budget (OMB) web site at
xxxx://xxx.xxxxxxxxxx.xxx/xxx/xxxxxx/xxxxxxx.xxx, linked on the page
xxxx://xxx.xxxxxxxxxx.xxx/xxx/xxxxxx/xxxxxx_xxxxx.xxxx.
D. The Undersigned certifies that either (i) it is not an organization described
in section 501(c)(4) of the Internal Revenue Code of 1986; or (ii) it is an
organization described in section 501(c)(4) of the Internal Revenue Code of 1986
but has not engaged and will not engage in "Lobbying Activities."
E. If the Undersigned is the Applicant, the Undersigned must obtain
certifications equal in form and substance to paragraphs I(A) through I(D) above
from all subcontractors before it awards any subcontract and the Undersigned
must maintain all such subcontractors' certifications for the duration of the
Matter and must make such certifications promptly available to the City upon
request.
II. CERTIFICATION REGARDING NONSEGREGATED FACILITIES
A. If the Undersigned is the Applicant, the Undersigned does not and will not
maintain or provide for its employees any segregated facilities at any of its
establishments, and it does not and will not permit its employees to perform
their services at any location under its control where segregated facilities are
maintained.
"SEGREGATED FACILITIES," as used in this provision, means any waiting
rooms, work areas, restrooms, washrooms, restaurants and other eating areas,
time clocks, locker rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas, transportation, and
housing provided for employees, that are segregated by explicit directive or are
in fact segregated on the basis of race, color, religion, sex, or national
origin because of habit, local or employee custom, or otherwise.
However, separated or single-user restrooms and necessary dressing or sleeping
areas must be provided to assure privacy between the sexes.
B. If the Undersigned is the Applicant and the Matter is federally funded, the
Undersigned will, before the award of subcontracts (if any), obtain identical
certifications from proposed subcontractors under which the subcontractor will
be subject to the Equal Opportunity Clause. Contracts and subcontracts exceeding
$10,000, or having an aggregate value exceeding $10,000 in any 12-month period,
are generally subject to the Equal Opportunity Clause. See 41 CFR Part 60 for
further information regarding the Equal Opportunity Clause. The Undersigned must
retain the certifications required by this paragraph (B) for the duration of the
contract (if any) and must make such certifications promptly available to the
City upon request.
C. If the Undersigned is the Applicant and the Matter is federally funded, the
Applicant will forward the notice set forth below to proposed subcontractors:
NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENTS FOR CERTIFICATIONS OF
NONSEGREGATED FACILITIES
Subcontractors must submit to the Contractor a Certification of
Nonsegregated Facilities before the award of any subcontract
under which the subcontractor will be subject to the federal Equal
Opportunity Clause. The subcontractor may submit such certifications
either for each subcontract or for all subcontracts during a period (e.g.,
quarterly, semiannually, or annually).
III. CERTIFICATION REGARDING EQUAL EMPLOYMENT OPPORTUNITY
Federal regulations require prospective contractors for federally funded Matters
(e.g., the Applicant) and proposed subcontractors to submit the following
information with their bids or in writing at the outset of negotiations. (NOTE:
THIS PART III IS TO BE COMPLETED ONLY IF THE UNDERSIGNED IS THE APPLICANT.)
A. Have you developed and do you have on file affirmative action programs
pursuant to applicable federal regulations? (See 41 CFR Part 60-2.)
[ ] Yes [ ] No [ ] N/A
B. Have you participated in any previous contracts or subcontracts subject to
the equal opportunity clause?
[ ] Yes [ ] No [ ] N/A
C. Have you filed with the Joint Reporting Committee, the Director of the
Office of Federal Contract Compliance Programs, or the Equal Employment
Opportunity Commission all reports due under the applicable filing
requirements?
[ ] Yes [ ] No [ ] N/A
SECTION SIX: NOTICE AND ACKNOWLEDGMENT REGARDING CITY GOVERNMENTAL ETHICS AND
CAMPAIGN FINANCE ORDINANCES
The City's Governmental Ethics and Campaign Financing Ordinances, Chapters 2-156
and 2-164 of the Municipal Code, impose certain duties and obligations on
individuals or entities seeking City contracts, work, business, or transactions.
The Board of Ethics has developed an ethics training program for such
individuals and entities. The full text of these ordinances and the training
program is available on line at xxx.xxxxxxxxxxxxx.xxx/Xxxxxx/, and may also be
obtained from the City's Board of Ethics, 000 X. Xxxxxxxx Xx., Xxxxx 000,
Xxxxxxx, XX 00000, (000) 000-0000. The following is descriptive only and does
not purport to cover every aspect of Chapters 2-156 and 2-164 of the Municipal
Code. The Undersigned must comply fully with the applicable ordinances.
[ ] BY CHECKING THIS BOX THE UNDERSIGNED ACKNOWLEDGES THAT THE UNDERSIGNED
UNDERSTANDS THAT THE CITY'S GOVERNMENTAL ETHICS AND CAMPAIGN FINANCING
ORDINANCES, AMONG OTHER THINGS:
1) Provide that any contract negotiated, entered into or performed in
violation of the City's ethics laws can be voided by the City.
2) Limit the gifts and favors any individual or entity can give, or offer
to give, to any City official, employee, contractor or candidate for
elected City office or the spouse or minor child of any of them,
including:
a. any cash gift or any anonymous gift; and
b. any gift based on a mutual understanding that the City official's or
employee's or City contractor's actions or decisions will be influenced
in any way by the gift.
3) Prohibit any City elected official or City employee from having a
financial interest, directly or indirectly, in any contract, work,
transaction or business of the City, if that interest has a cost or
present value of $5,000 or more, or if that interest entitles the owner
to receive more than $2,500 per year.
4) Prohibit any appointed City official from engaging in any contract,
work, transaction or business of the City, unless the matter is wholly
unrelated to the appointed official's duties or responsibilities.
5) Provide that City employees and officials, or their spouses or minor
children, cannot receive compensation or anything of value in return
for advice or assistance on matters concerning the operation or
business of the City, unless their services are wholly unrelated to
their City duties and responsibilities.
6) Provide that former City employees and officials cannot, for a period
of one year after their City employment ceases, assist or represent
another on any matter involving the City if, while with the City, they
were personally and substantially involved in the same matter.
7) Provide that former City employees and officials cannot ever assist or
represent another on a City contract if, while with the City, they were
personally involved in or directly supervised the formulation,
negotiation or execution of that contract.
SECTION SEVEN: CONTRACT INCORPORATION, COMPLIANCE, PENALTIES, DISCLOSURE
THE UNDERSIGNED UNDERSTANDS AND AGREES THAT:
A. The certifications, disclosures, and acknowledgments contained in this EDS
will become part of any contract or other agreement between the Applicant and
the City in connection with the Matter, whether procurement, City assistance, or
other City action, and are material inducements to the City's execution of any
contract or taking other action with respect to the Matter. The Undersigned
understands that it must comply with all statutes, ordinances, and regulations
on which this EDS is based.
B. If the City determines that any information provided in this EDS is false,
incomplete or inaccurate, any contract or other agreement in connection with
which it is submitted may be rescinded or be void or voidable, and the City may
pursue any remedies under the contract or agreement (if not rescinded, void or
voidable), at law, or in equity, including terminating the Undersigned's
participation in the Matter and/or declining to allow the Undersigned to
participate in other transactions with the City.
C. Some or all of the information provided on this EDS and any attachments to
this EDS may be made available to the public on the Internet, in response to a
Freedom of Information Act request, or otherwise. By completing and signing this
EDS, the Undersigned waives and releases any possible rights or claims which it
may have against the City in connection with the public release of information
contained in this EDS and also authorizes the City to verify the accuracy of any
information submitted in this EDS.
D. The Undersigned has not withheld or reserved any disclosures as to economic
interests in the Undersigned, or as to the Matter, or any information, data or
plan as to the intended use or purpose for which the Applicant seeks City
Council or other City agency action.
E. The information provided in this EDS must be kept current. In the event of
changes, the Undersigned must supplement this EDS up to the time the City takes
action on the Matter.
CERTIFICATION
Under penalty of perjury, the person signing below: (1) warrants that he/she is
authorized to execute this EDS on behalf of the Undersigned, and (2) warrants
that all certifications and statements contained in this EDS are true, accurate
and complete as of the date furnished to the City.
_______________________________________________________________________ Date: ____________________________
(Print or type name of individual or legal entity submitting this EDS)
By:
_______________________________________________________________________
(sign here)
Print or type name of signatory:
_______________________________________________________________________
Title of signatory:
_______________________________________________________________________
Subscribed to before me on [date] __________________________, at _______________
County, __________________________ [state].
________________________________________________________________ Notary Public.
Commission expires: ________________________________.
(DO NOT SUBMIT THIS PAGE WITH YOUR EDS. THE PURPOSE OF THIS PAGE IS FOR YOU TO
RECERTIFY YOUR EDS PRIOR TO SUBMISSION TO CITY COUNCIL OR ON THE DATE OF
CLOSING. IF UNABLE TO RECERTIFY TRUTHFULLY, THE UNDERSIGNED MUST COMPLETE A NEW
EDS WITH CORRECT OR CORRECTED INFORMATION.)
RECERTIFICATION
GENERALLY, FOR USE WITH CITY COUNCIL MATTERS. NOT FOR CITY PROCUREMENTS
UNLESS REQUESTED.
This recertification is being submitted in connection with ____________________
[identify the Matter]. Under penalty of perjury, the person signing below: (1)
warrants that he/she is authorized to execute this EDS recertification on behalf
of the Undersigned, (2) warrants that all certifications and statements
contained in the Undersigned's original EDS are true, accurate and complete as
of the date furnished to the City and continue to be true, accurate and complete
as of the date of this recertification, and (3) reaffirms its acknowledgments.
__________________________________________________________________________________ Date: ____________________________
(Print or type name of individual or legal entity submitting this recertification)
By:
_______________________________________________________________________
(sign here)
Print or type name of signatory:
_______________________________________________________________________
Title of signatory:
_______________________________________________________________________
Subscribed to before me on [date] __________________________, at _______________
County, __________________________ [state].
________________________________________________________________ Notary Public.
Commission expires: ________________________________.
