Exhibit 10.8
22 December 2004
BALFOUR XXXXXX PLC
and
MACQUARIE EUROPEAN INFRASTRUCTURE PLC
and
MACQUARIE YORKSHIRE LIMITED
and
CONNECT M1-A1 LIMITED
and
CONNECT M1-A1 HOLDINGS LIMITED
and
MACQUARIE YORKSHIRE LLC
and
MACQUARIE INFRASTRUCTURE COMPANY LLC
DEED OF NOVATION IN RELATION TO THE SHAREHOLDERS AGREEMENT
Linklaters
Xxx Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone (00-00) 0000 0000
Facsimile (00-00) 0000 0000
Ref Xxxxxxxxx Xxxxxx
THIS DEED is made on 22 December 2004 BETWEEN:
(1) BALFOUR XXXXXX PLC (registered number 395826) whose registered office is at
000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX ("BB");
(2) MACQUARIE EUROPEAN INFRASTRUCTURE PLC (registered number 3724230) whose
registered office is at Xxxxx 00 and 30, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X
0XX ("MEIP");
(3) MACQUARIE YORKSHIRE LIMITED (registered number 4712996) whose registered
office is at Xxxxx 00 xxx 00, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("MYL");
(4) CONNECT M1-A1 LIMITED (registered number 2999303) whose registered office
is at 0xx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxx XX0X 0XX (formerly
Yorkshire Link Limited) ("Connect");
(5) CONNECT M1-A1 HOLDINGS LIMITED (registered number 3059235) whose registered
office is at 0xx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxx XX0X 0XX
(formerly Yorkshire Link (Holdings) Limited) ("Connect Holdings");
(6) MACQUARIE YORKSHIRE LLC whose principal executive office is at 000 Xxxxx
Xxxxxx, 00xx xxxxx, Xxx Xxxx, XX 00000 XXX ("MY LLC"); and
(7) MACQUARIE INFRASTRUCTURE COMPANY LLC whose principal executive office is at
000 Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, XX 00000 XXX (formerly Macquarie
Infrastructure Assets LLC) ("MICL" or the "Guarantor").
WHEREAS:
(A) BB, MEIP, MYL, Connect and Connect Holdings have entered into the
Shareholders Agreement (as defined in this Deed).
(B) Pursuant to a share purchase agreement entered into between MEIP and MICL
on or around the date hereof, MEIP will sell and MICL will purchase the
5,000,000 ordinary shares owned by MEIP in MYL (the "Share Purchase
Agreement").
(C) Prior to Completion (as defined in the Share Purchase Agreement), MICL
intends to notify MEIP that it wishes to nominate MY LLC as the transferee
of the Shares (as defined in the Share Purchase Agreement) pursuant to
paragraph 1 of Part A of Schedule 5 of the Share Purchase Agreement.
(D) MEIP therefore wishes to be released and discharged from the Shareholders
Agreement and the parties have agreed to the novation of the Shareholders
Agreement.
(E) BB has agreed to provide reasonable assistance with respect to the
preparation of certain financial statements and other forms relating to
Connect Holdings as required under US securities laws and regulations.
(F) The Guarantor agrees to guarantee to MEIP, MYL, Connect and Connect
Holdings the obligations of MY LLC under or pursuant to this Deed and the
Replacement Shareholders Agreement (as defined in this Deed).
(G) The Guarantor and BB have separately entered into a guarantee on or around
the date hereof pursuant to which the Guarantor agrees to guarantee to BB,
inter alia, the performance by MY LLC of its obligations under or pursuant
to this Deed.
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(H) Yorkshire Link Limited changed its name to Connect M1-A1 Limited on 2 June
2004; Yorkshire Link (Holdings) Limited changed its name to Connect M1-A1
Holdings Limited on 2 June 2004.
IT IS AGREED:
1 DEFINITIONS AND INTERPRETATION
In this Deed the following expressions shall have the following meanings:
"Continuing Parties": means BB, Connect Holdings, Connect and MYL;
"Effective Date": means the date of Completion as defined in the Share
Purchase Agreement;
"Exchange Act": means the US Securities Exchange Act of 1934, as amended;
"Replacement Shareholders Agreement": means the agreement to replace the
Shareholders Agreement as set out in Clause 2.1;
"Securities Act": means the US Securities Act of 1933, as amended; and
"Shareholders Agreement": means the shareholders agreement dated 26 March
1996, as amended and restated on 30 April 2003, between BB, MEIP, MYL,
Connect and Connect Holdings relating to the purposes of (i) regulating, as
between the parties their relationship with each other as shareholders in
Connect Holdings and (ii) regulating, as between all of the parties,
certain aspects of the affairs of Connect Holdings and Connect.
2 NOVATION
With effect from the Effective Date:
2.1 The Shareholders Agreement shall be terminated and the Shareholders
Agreement shall be replaced by the Replacement Shareholders Agreement,
which shall be on identical terms to the Shareholders Agreement save
that:
2.1.1 MY LLC shall be a party in place of MEIP;
2.1.2 references to "Macquarie European Infrastructure PLC (registered
number 3724230) whose registered office is at Xxxxx 00 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX" shall be references to "Macquarie
Yorkshire LLC whose principal executive office is at 000 Xxxxx
Xxxxxx, 00xx xxxxx, Xxx Xxxx, XX 00000 XXX ("MY LLC")";
2.1.3 references to "MEIP" shall be references to "MY LLC";
2.1.4 the definition of "Guarantee" shall be replaced by the "deed of
guarantee entered into on or around the date hereof under which
Macquarie Infrastructure Company LLC agrees to guarantee to BB
the performance by (i) MY LLC of its obligations under or
pursuant to the Shareholders Agreement Novation and (ii) MYL of
its obligations under or pursuant to this agreement and the
Secondment Agreement Novation and the Secondment Agreement";
2.1.5 the definition of "Shareholders Agreement Novation" shall be
"the deed of novation of the Shareholders Agreement entered into
on or around the date
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hereof between BB, MEIP, MYL, Connect, Connect Holdings, MY LLC
and Macquarie Infrastructure Company LLC";
2.1.6 the definition of "Secondment Agreement Novation" shall be "the
deed of novation of the Secondment Agreement entered into on or
around the date hereof between BB, MIUK, Connect, MYL and
Macquarie Infrastructure Company LLC";
2.1.7 references to "Yorkshire Link Limited (registered number
2999303) whose registered office is at Xxxxx 00 and 30, 0
Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX" shall be references to
"Connect M1-A1 Limited (registered number 2999303) whose
registered office is at Xxxxx 00 xxx 00, 0 Xxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX";
2.1.8 references to "Yorkshire Link (Holdings) Limited (registered
number 3059235) whose registered office is at Xxxxx 00 and 30, 0
Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX" shall be references to
"Connect M1-A1 Holdings Limited (registered number 3059235)
whose registered office is at Xxxxx 00 xxx 00, 0 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX";
2.1.9 the following additional definitions shall apply:
"MICL" means Macquarie Infrastructure Company LLC whose
principal executive office is at 000 Xxxxx Xxxxxx, 00xx xxxxx,
Xxx Xxxx, XX 00000 XXX
"MY LLC" means Macquarie Yorkshire LLC whose principal executive
office is at 000 Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, XX 00000
XXX; and
2.1.10 the words in Clause 11(5) from "If the MYL Owners receive a
bona fide offer" to the end of that Clause 11(5) shall be
deleted and the following inserted in their place:
"If:
(i) MY LLC receives a bona fide offer to Transfer all or any
part of its shares in MYL; or
(ii) MICL (together with MY LLC for the purposes of this Clause
11(5), an "Offeror") receives a bona fide offer to Transfer
all or any part of its shares in MY LLC
from any bona fide arms length third party purchaser (an
"Offeree"), then the relevant Offeror shall within 5 Business
Days give notice to all other Shareholders including in such
notice:
(a) the percentage of shares in MYL, or MY LLC (as the case may
be) which the Offeror is proposing to Transfer ("Offered
MYL Interests");
(b) the purchase price; and
(c) the material terms of the offer (including whether any sale
is subject to any Approvals) (such notice hereafter being
referred to as the "MYL Notice"), and
Clauses 11A(3), 11A(4), 11A(5), 11A(6), 11A(7) and 11A(8) shall
apply except that:
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(d) references to "Transfer Notice" shall be construed as a
reference to the "MYL Notice" and references to "Specified
Terms" shall be construed as a reference to the terms of
such MYL Notice;
(e) references to YHL Shares shall be construed as a reference
to shares in MYL or MY LLC (as the case may be);
(f) references to "YLL Loan Stock" and "interests in the
Commercial Subordinated Loan Agreement" shall be
disregarded;
(g) references to the "Offered Interests" shall be construed as
references to the "Offered MYL Interests";
(h) references to the "Proposing Transferor" shall be construed
as references to the relevant Offeror;
(i) references to the "Proposing Transferee" shall be construed
as references to the "Offeree"; and
(j) written offers from a Continuing Shareholder shall be given
to the relevant Offeror, the relevant Offeror shall give
notices to (and receive notices from) the Continuing
Shareholder or the Losing Shareholder (as the case may be)
and the relevant Offeror shall make determinations as to the
terms of the offers (in each case, in lieu of YHL).
For the avoidance of doubt. Clauses 11A(3A) and 11(2A) shall not
apply to any Transfer or prospective Transfer of shares in MYL or
MY LLC (as the case may be)."
2.2 MY LLC undertakes with the Continuing Parties, from the Effective
Date, to accept, observe, perform, discharge and be bound by the
Replacement Shareholders Agreement.
2.3 Notwithstanding this undertaking, nothing in this Deed shall:
2.3.1 require MY LLC to perform any obligation created by or arising
under the Shareholders Agreement falling due for performance, or
which should have been performed by MEIP, before the Effective
Date; or
2.3.2 make MY LLC liable for any act, neglect, default or omission in
respect of the Shareholders Agreement committed by MEIP
occurring before the Effective Date.
2.4 With effect from the Effective Date, the Continuing Parties agree to
the substitution of the Replacement Shareholders Agreement in place of
the Shareholders Agreement and accept MY LLC's undertaking in Clause
2.2 above to observe, perform, discharge and be bound by the
Replacement Shareholders Agreement.
2.5 The Continuing Parties hereby release and discharge MEIP from all
claims and demands from each of the Continuing Parties, and from each
of its liabilities and obligations, howsoever arising under the
Shareholders Agreement to the extent assumed by MY LLC pursuant to
this Deed and accept the like liabilities and obligations to them of
MY LLC in place of MEIP under the Replacement Shareholders Agreement.
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2.6 Notwithstanding Clause 2.5, nothing in this Deed shall affect or
prejudice any claim or demand whatsoever which the Continuing Parties
may have against MEIP in relation to the Shareholders Agreement and
arising out of matters prior to the Effective Date.
2.7 With effect from the Effective Date, MEIP hereby releases and
discharges the Continuing Parties from all claims and demands by MEIP,
and from each of their respective liabilities and obligations to MEIP,
howsoever arising under the Shareholders Agreement. Notwithstanding
this undertaking and release, nothing in this Deed shall affect or
prejudice any claim or demand whatsoever which MEIP may have against
the Continuing Parties in relation to the Shareholders Agreement and
arising out of matters prior to the Effective Date.
3 INDEMNITY
MEIP hereby undertakes to indemnify MY LLC in respect of all liabilities,
losses, charges, costs, claims or demands incurred or made by MY LLC in
relation to the Shareholders Agreement and arising from acts or omissions
of MEIP prior to the Effective Date.
4 BB'S UNDERTAKING
4.1 BB shall procure that for so long as its employees are seconded to
Connect to perform the UK GAAP accounting function that those
employees will use their reasonable endeavours to provide such
supplementary information as MICL may reasonably request so as to (i)
enable MICL to produce the consolidated financial statements of
Connect Holdings for the 3 months and calendar year to date periods
ended March 31, June 30, September 30 and December 31 of each year,
including the results of activity from January 1 of each year to such
period end, in conformity with accounting principles generally
accepted in the United States, with the Securities Act and with the
Exchange Act; (ii) assist in the review of the periods ended March 31,
June 30 and September 30 as required by the independent accountants in
accordance with United States Generally Accepted Auditing Standards;
(iii) assist in the audit for the year ended December 31 of each year
in accordance with United States Generally Accepted Auditing
Standards; and (iv) assist MICL in the preparation of forms required
to be submitted to the Securities and Exchange Commission under the
Securities Act and the Exchange Act, including, but not limited to,
Forms 10-K, 10-Q and 8-K, as needed.
4.2 The Guarantor shall indemnify BB for its reasonable costs incurred in
providing the assistance described in Clause 4.1 above.
5 GUARANTEE
5.1 The Guarantor unconditionally and irrevocably guarantees to MEIP, MYL,
Connect and Connect Holdings the due and punctual performance and
observance by MY LLC of its obligations, commitments, undertakings,
warranties and indemnities under or for breach of this Deed and the
Replacement Shareholders Agreement (the "Guaranteed Obligations").
5.2 If and whenever MY LLC defaults for any reason whatsoever in the
performance of any of the Guaranteed Obligations, the Guarantor shall
forthwith upon demand unconditionally perform (or procure performance
of) and satisfy (or procure
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satisfaction of) the Guaranteed Obligations in respect of which there
has been default in the manner prescribed by this Deed and so that the
same benefits shall be conferred on MEIP, MYL, Connect and Connect
Holdings as they would have received if the Guaranteed Obligations had
been duly performed and satisfied by MY LLC.
5.3 This guarantee is a continuing guarantee and is to remain in force
until all the Guaranteed Obligations have been performed or satisfied.
This guarantee is in addition to and without prejudice to and not in
substitution for any rights or security which MEIP, MYL, Connect and
Connect Holdings may now or hereafter have or hold for the performance
and observance of the Guaranteed Obligations.
5.4 The liability of the Guarantor under this Clause 5 shall not be
released or diminished by any variation of the Guaranteed Obligations
or any forbearance, neglect or delay in seeking performance of the
Guaranteed Obligations or any granting of time for such performance
and shall not be affected or impaired by reason of any other fact or
event which in the absence of this provision would or might constitute
or afford a legal or equitable discharge or release or a defence to a
guarantor.
6 FURTHER ASSURANCE
Each of the parties agrees to perform (or procure the performance of) all
further acts and things, and execute and deliver (or procure the execution
and delivery of) such further documents, as may be required by law or as
may be necessary or reasonably desirable to implement and/or give effect to
this Deed.
7 COUNTERPARTS
This Deed may be executed in any number of counterparts and by the parties
to it on separate counterparts, each of which is an original but all of
which together constitute one and the same instrument.
8 NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Deed shall have no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any of the terms of
this Deed or the Replacement Shareholders Agreement.
9 GOVERNING LAW
9.1 This Deed and the relationship between the parties shall be governed
by, and interpreted in accordance with English law.
9.2 All parties agree that the Courts of England are to have exclusive
jurisdiction to settle any dispute (including claims for set-off and
counterclaim) which may arise in connection with the creation,
validity, effect, interpretation or performance of, or the legal
relationships established by this Deed or the Replacement Shareholders
Agreement or otherwise arising in connection with this Deed and for
such purposes irrevocably submit to the jurisdiction of the English
Courts.
9.3 MY LLC and MICL shall at all times maintain an agent for service of
process and any other documents in proceedings in England or any other
proceedings in connection with this Deed or the Replacement
Shareholders Agreement. Such agent shall be
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MYL of Xxxxx 00 and 30, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX and any
judgment or other notice of legal process shall be sufficiently served
on MY LLC and MICL if delivered to such agent at its address for the
time being. MY LLC and MICL agree to inform each party in writing of
any change of address of such process agent within 28 days of such
change. If such process agent ceases to be able to act as such or to
have an address in England, MY LLC and MICL irrevocably agree to
appoint a new process agent in England and to deliver to each party
within 14 days a copy of a written acceptance of appointment by the
process agent.
AS WITNESS this Deed has been executed by the parties hereto and is hereby
delivered on the date first above written.
EXECUTED and DELIVERED
as a DEED on behalf of
BALFOUR XXXXXX PLC by
/s/ A. L. P. Xxxxx
-------------------------------------
Name: A. L. P. Xxxxx
Director
/s/ C.R. O'N Pearson
-------------------------------------
Name: C.R. O'N Pearson
Secretary
EXECUTED and DELIVERED
as a DEED on behalf of
MACQUARIE EUROPEAN
INFRASTRUCTURE PLC by
/s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Director
/s/ Annabelle Helps
-------------------------------------
Name: Annabelle Helps
Secretary
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EXECUTED and DELIVERED
as a DEED on behalf of
MACQUARIE YORKSHIRE
LIMITED by
/s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Director
/s/ Annabelle Helps
-------------------------------------
Name: Annabelle Helps
Secretary
EXECUTED and DELIVERED
as a DEED on behalf of
CONNECT M1-A1 LIMITED by
/s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Director
EXECUTED and DELIVERED
as a DEED on behalf of
CONNECT M1-A1 HOLDINGS
LIMITED by
/s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Director
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EXECUTED and DELIVERED
as a DEED on behalf of
MACQUARIE YORKSHIRE LLC
by
/s/ Xxxxx Xxxxxx
------------------------------
Name(s): Xxxxx Xxxxxx
Authorised Signatory/
Signatories
EXECUTED and DELIVERED
as a DEED on behalf of
MACQUARIE
INFRASTRUCTURE COMPANY
LLC by
/s/ Xxxxx Xxxxxx
------------------------------
Name(s): Xxxxx Xxxxxx
Authorised Signatory/
Signatories
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