UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): May 21, 2015
MACQUARIE INFRASTRUCTURE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware | 001-32384 | 43-2052503 | ||
(State or other jurisdiction of
incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification
No.) |
125 West 55 th Street
New York, NY 10019
(Address of Principal Executive Offices/Zip Code)
(212) 231-1000
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
EXPLANATORY NOTE
This Current Report on Form 8-K is being filed for the purpose of establishing Macquarie Infrastructure Corporation, a Delaware corporation (the “Company”) as the successor issuer to Macquarie Infrastructure Company LLC, a Delaware limited liability company (the “Predecessor”) with respect to the Company’s Common Stock (as defined below) pursuant to Rule 12g3-2(a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and to disclose certain related matters.
On May 21, 2015, the Predecessor consummated a conversion (the “Conversion”) whereby it converted from a Delaware limited liability company to a Delaware corporation. The Company is the successor corporation resulting from the Conversion. See Item 8.01 below for more information on the Conversion.
In connection with the consummation of the Conversion, the Common Stock has been approved for listing on the New York Stock Exchange (“NYSE”), and commenced trading on May 21, 2015 on an uninterrupted basis under the trading symbol “MIC”.
Pursuant to Rule 12g3-2(a) under the Exchange Act, the outstanding limited liability company interests issued by the Predecessor and listed on the NYSE, which automatically converted to shares of common stock, par value $0.001 per share of the Company (“Common Stock”) upon the consummation of the Conversion, are now deemed to be issued by the Company and registered under Section 12(b) of the Exchange Act. Holders of these securities and holders of our outstanding debt securities need not take any further action in order to effectuate the Conversion.
Item 1.01 | Entry into a Material Definitive Agreement |
On May 21, 2015, the Company entered into the Third Amended and Restated Management Services Agreement (the “Amended MSA”) with Macquarie Infrastructure Management (USA) Inc. (the “Manager”) to give effect to the Conversion. Concurrently with the Conversion, the Manager was issued 100 shares of a new series of special stock of the Company in order to induce the Manager to enter into the Amended MSA. The sole purpose for the issuance of shares of special stock to the Manager was to preserve the Manager’s existing right to appoint one director who served as the chairman of the board of directors of the Predecessor pursuant to the terms of the Predecessor’s operating agreement, which right would otherwise have been lost upon consummation of the Conversion. Following the Conversion and the issuance of special stock, the Manager’s right to elect one director who serves as chairman will be the same as is currently in effect. The Company did not grant any additional rights to the Manager through the special stock issuance. In connection with the Conversion, Macquarie Infrastructure Company Inc., a wholly owned subsidiary of the Company and a party to the Amended MSA, changed its name to MIC Ohana Corporation. The Amended MSA is filed as Exhibit 4.1 hereto and is incorporated by reference herein.
On May 21, 2015, the Company entered into the Amended and Restated Registration Rights Agreement (the “Amended RRA”) with the Manager to give effect to the Conversion. The Amended RRA is filed as Exhibit 4.2 hereto and is incorporated by reference herein.
On May 21, 2015, the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”) entered into the second supplemental indenture (the “Supplemental Indenture”) to the indenture dated as of July 15, 2014, as supplemented, with respect to the Company’s 2.875% Convertible Senior Notes due 2019 (the “Notes”). Pursuant to the Supplemental Indenture, as of the effective time of the Conversion, the Company’s obligation to convert each $1,000 principal amount of Notes into LLC interests of the Predecessor was changed into the obligation to convert each $1,000 principal amount of Notes into Common Stock of the Company. The Supplemental Indenture is filed as Exhibit 4.3 hereto and is incorporated by reference herein.
Item 3.02 | Unregistered Sales of Equity Securities |
The information disclosed under Item 1.01, to the extent applicable, is incorporated herein by reference.
The issuance of the special stock was made pursuant to the exemption from the registration requirements of the Securities Act of 1933, as amended, provided by Section 4(a)(2).
Item 3.03 | Material Modification to the Rights of Security Holders |
Upon the consummation of the Conversion, each issued and outstanding limited liability company interest of the Predecessor was converted into one share of Common Stock of the Company. A description of the Common Stock is set forth on Exhibit 99.2 hereto and incorporated by reference herein.
The consummation of the Conversion constitutes a Make-Whole Fundamental Change under the indenture governing the Notes. Accordingly, any holder of the Notes who elects to convert its Notes from May 21, 2015 until the close of business on June 18, 2015, shall be entitled to a conversion rate with respect to the Notes so surrendered for conversion of 12.7836 per $1,000 aggregate principal amount of Notes, which is an increase of 0.9894 shares from the conversion rate in effect immediately prior to the Conversion.
Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year |
At a meeting of the shareholders of the Predecessor, held on May 15, 2015, the shareholders of the Predecessor approved the plan of conversion, including the Certificate of Incorporation and bylaws contemplated thereby. The Certificate of Incorporation and the bylaws of the Company became effective upon the consummation of the Conversion and are filed as Exhibits 3.1 and 3.2 hereto and incorporated by reference herein.
Item 8.01 | Other Events |
On May 21, 2015, the Company announced that it completed the Conversion pursuant to the plan of conversion dated as of April 10, 2015. At the effective time of the Conversion, each outstanding limited liability company interest of the Predecessor automatically converted into one share of Common Stock of the Company.
In connection with the consummation of the Conversion, the Common Stock has been approved for listing on the New York Stock Exchange and commenced trading on May 21, 2015 on an uninterrupted basis under the trading symbol “MIC”. Attached as Exhibit 99.1 hereto is a press release issued May 21, 2015 by the Company regarding the Conversion.
The Description of Capital Stock set forth in Exhibit 99.2 is being filed for the purpose of providing an updated description of the capital stock of the Company. The Description of Capital Stock set forth in Exhibit 99.2 modifies and supersedes any prior description of the capital stock of the Company in any registration statement filed with the Securities and Exchange Commission (the “Commission”) and will be available for incorporation by reference into certain of the Company’s filings with the Commission pursuant to the Securities Act of 1933, as amended, and the Exchange Act, including registration statements.
The plan of conversion is filed as Exhibit 2.1 hereto and incorporated by reference herein.
Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
Exhibit No. | Description | |
2.1 | Plan of Conversion dated April 10, 2015 (incorporated by reference to Exhibit 2.1 of the Registrant’s Registration Statement on Form S-4 (Reg. No. 333-202162) | |
3.1 | Certificate of Incorporation of the Registrant. | |
3.2 | Bylaws of the Registrant. | |
4.1 | Third Amended and Restated Management Services Agreement by and among the Registrant, MIC Ohana Corporation and Macquarie Infrastructure Management (USA) Inc. | |
4.2 | Amended and Restated Registration Rights Agreement between the Registrant and Macquarie Infrastructure Management (USA) Inc. | |
4.3 | Second supplemental indenture, dated as of May 21, 2015, by and between Macquarie Infrastructure Corporation and Wells Fargo, National Association, as Trustee. | |
99.1 | Press release | |
99.2 | Description of Capital Stock |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Macquarie Infrastructure Corporation | |||
Date: May 21, 2015 | By: | /s/ James Hooke | |
Name: | James Hooke | ||
Title: | Chief Executive Officer |
EXHIBIT INDEX
Exhibit No. | Description | |
2.1 | Plan of Conversion dated April 10, 2015 (incorporated by reference to Exhibit 2.1 of the Registrant’s Registration Statement on Form S-4 (Reg. No. 333-202162) | |
3.1 | Certificate of Incorporation of the Registrant. | |
3.2 | Bylaws of the Registrant. | |
4.1 | Third Amended and Restated Management Rights Agreement by and among the Registrant, MIC Ohana Corporation and Macquarie Infrastructure Management (USA) Inc. | |
4.2 | Amended and Restated Registration Rights Agreement between the Registrant and Macquarie Infrastructure Management (USA) Inc. | |
4.3 | Second supplemental indenture, dated as of May 21, 2015, by and between Macquarie Infrastructure Corporation and Wells Fargo, National Association, as Trustee. | |
99.1 | Press release | |
99.2 | Description of Capital Stock |
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
MACQUARIE INFRASTRUCTURE CORPORATION
Article
I
NAME
The name of the Corporation is Macquarie Infrastructure Corporation (the “ Corporation ”).
Article
II
REGISTERED AGENT
The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.
Article
III
PURPOSE
The purpose of the Corporation is to conduct or promote any lawful business, purpose or activity permitted for a corporation under the General Corporation Law of the State of Delaware (the “ DGCL ”); provided , however , that the Corporation is not permitted to engage in any activities that would cause it to become an “ investment company ” as defined in Section 3(a)(1) of the Investment Company Act of 1940, as amended and as may be amended from time to time, or any successor provision thereto.
Article
IV
AUTHORIZED STOCK
A. Classes of Stock . The total number of shares of stock that the Corporation shall have authority to issue is 600,000,100, consisting of 500,000,000 shares of common stock, par value $0.001 per share (“ Common Stock ”), 100 shares of special stock, par value $0.001 per share (“ Special Stock ”) and 100,000,000 shares of preferred stock, par value $0.001 per share (“ Preferred Stock ”).
B. Increase or Decrease in Authorized Capital Stock . The board of directors of the Corporation (the “ Board of Directors ”) is further authorized to increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares of any such series then outstanding) the number of shares of any series, the number of which was fixed by it, subsequent to the issuance of shares of such series then outstanding, subject to the powers, preferences and rights, and the qualifications, limitations and restrictions thereof stated in this Certificate of Incorporation or the resolution of the Board of Directors originally fixing the number of shares of such series. If the number of shares of any series is so decreased, then the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.
C. Rights of Preferred Stock . The Board of Directors is hereby expressly authorized, subject to limitations prescribed by law, to provide, out of the unissued shares of Preferred Stock, for the issuance of shares of Preferred Stock in series and to fix by resolution or resolutions the designations, powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, of any wholly unissued series of Preferred Stock, including without limitation authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of any such series, and the number of shares constituting any such series and the designation thereof, or any of the foregoing. The powers, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.
D. Rights of Special Stock .
1. | The holder or holders of Special Stock shall have only such voting powers as are set forth herein. |
2. | In addition to any other vote required by law or by this Certificate of Incorporation, the prior affirmative vote or written consent of the holders of a majority of the outstanding shares of Special Stock, voting or consenting separately as a class, shall be required for the Corporation to do any of the following: |
a. | authorize or issue shares of Special Stock or issue shares of Preferred Stock; or |
b. | amend any provision of this Certificate of Incorporation or the Bylaws of the Corporation in a manner that would adversely affect the rights of holders of Special Stock as a class. |
3. | Upon the earlier of (i) the date on which the Management Services Agreement (as defined in Article IX ) is terminated or (ii) the first date on which neither the Manager nor any Manager Affiliate (as defined in the Management Services Agreement) holds at least 200,000 shares of Common Stock (as adjusted to reflect any subsequent equity splits or similar recapitalizations) (a “ Redemption Event ”), all outstanding shares of Special Stock shall be redeemed by the Corporation out of funds lawfully available therefor at a price equal to $0.001 per share (the “ Redemption Price ”) within five (5) business days after the Corporation becomes aware of the occurrence of such a Redemption Event (the “ Redemption Date ”). If the Corporation does not have sufficient funds legally available to redeem on any Redemption Date all outstanding shares of Special Stock, the Corporation shall redeem a pro rata portion of each holder’s redeemable shares of such capital stock out of any such legally available funds, and shall redeem the remaining shares to have been redeemed as soon as practicable after the Corporation has funds legally available therefor. |
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a. | On or before the applicable Redemption Date, following notice from the Corporation of the occurrence of a Redemption Event, each holder of shares of Special Stock to be redeemed on such Redemption Date, shall surrender the certificate or certificates representing such shares (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation, in the manner and at the place designated by the Corporation, and thereupon the Redemption Price for such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof. In the event less than all the shares of the Special Stock represented by a certificate are redeemed, a new certificate representing the unredeemed shares of Special Stock shall promptly be issued to such holder. |
b. | If on the applicable Redemption Date, the full amount of the Redemption Price payable upon redemption of the shares of Special Stock to be redeemed on such Redemption Date is paid or tendered for payment or deposited with an independent payment agent in trust for the benefit of the holders of shares to be redeemed with irrevocable instructions and authority to consummate the redemption of such shares in accordance with the terms and conditions set forth herein so as to be available therefor, then notwithstanding that the certificates evidencing any of the shares of Special Stock so called for redemption shall not have been surrendered, all rights with respect to such shares shall forthwith after the Redemption Date terminate, except only the right of the holders to receive the Redemption Price without interest upon surrender of their certificate or certificates therefor. |
c. | Any shares of Special Stock which are redeemed or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically and immediately canceled and retired and shall not be reissued, sold or transferred. Neither the Corporation nor any of its subsidiaries may exercise any voting or other rights granted to the holders of Special Stock following redemption. |
4. | The holders of Special Stock may not effect any offer, sale, pledge, transfer or other disposition or distribution (or enter into any agreement with respect to the foregoing) of shares of Special Stock. Any such purported offer, sale, pledge, transfer or other disposition or distribution of shares of Special Stock shall be null and void. |
5. | All certificates representing shares of Special Stock shall bear the following legend: |
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THE SHARE OF SPECIAL STOCK, PAR VALUE $0.001 PER SHARE, OF MACQUARIE INFRASTRUCTURE CORPORATION REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR TRANSFERRED BY THE HOLDER HEREOF.
E. Rights of Common Stock and Special Stock . Each share of Common Stock shall entitle the holder thereof to one (1) vote on each matter submitted to a vote of holders of Common Stock at a meeting of stockholders. Each share of Special Stock shall entitle the holder thereof to one (1) vote on each matter submitted to a vote or for consent by holders of Special Stock. Except as explicitly set forth in this Certificate of Incorporation, holders of Special Stock shall not be entitled to vote on or consent to any matter.
F. Dividends .
1. | Subject to provisions of law and the preferences of any series of Preferred Stock and of any other stock ranking prior to the Common Stock as to the payment of dividends, the holders of Common Stock shall be entitled to receive dividends at such time and in such amounts as may be determined by the Board of Directors and declared out of any funds lawfully available therefor, and shares of Preferred Stock of any series shall not be entitled to share therein except as otherwise expressly provided in the resolution or resolutions of the Board of Directors providing for the issue of such series. |
2. | If and when dividends on the Common Stock are declared payable from time to time by the Board of Directors as provided in this Article IV , Section F , whether payable in cash, in property or in shares of stock of the Corporation, the holders of Common Stock shall be entitled to share equally, on a per share basis, in such dividends. Holders of Special Stock shall not be entitled to receive dividends of the Corporation. |
G. Voluntary or Involuntary Liquidation . Subject to the rights of the holders of any series of Preferred Stock outstanding at any time, in the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, holders of Common Stock shall be entitled to share equally, on a per share basis, in all assets of the Corporation of whatever kind available for distribution to the holders of Common Stock. Holders of Special Stock shall not be entitled to share in any distribution of assets in the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary.
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Article
V
INCORPORATOR
The name and mailing address of the incorporator of the Corporation is:
Name | Address |
Michael Kernan |
125 West 55 th Street New York, New York 10019 |
Article
VI
MATTERS RELATING TO THE BOARD OF DIRECTORS
A. General Powers . The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors.
B. Number of Directors; Term .
1. | Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, if any, the number of directors that constitutes the Entire Board of Directors (as defined below) shall be fixed from time to time exclusively pursuant to a resolution adopted by the Board of Directors, but shall consist of not less than four (4) nor more than twelve (12) directors. |
2. | Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, if any, the term of each director shall be the period from the effective date of such director’s election to the next annual meeting of the stockholders until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation or removal. |
C. Election of Directors . Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, if any, the right to elect persons to the Board of Directors shall be allocated as follows:
1. | At any time when the Management Services Agreement (as defined in Article IX ) is in effect and the Manager or any Manager Affiliate (as defined in the Management Services Agreement) holds at least 200,000 shares of Common Stock (as adjusted to reflect any subsequent equity splits or similar recapitalizations), (i) the holders of Special Stock, voting or consenting separately as a class, shall be entitled to elect one (1) director; and (ii) the holders of Common Stock, voting separately as a class, shall be entitled to elect the remaining directors. |
2. | At any time when the Management Services Agreement (as defined in Article IX ) is no longer in effect or neither the Manager nor any Manager Affiliate (as defined in the Management Services Agreement) holds at least 200,000 shares of Common Stock (as adjusted to reflect any subsequent equity splits or similar recapitalizations), the holders of Common Stock shall be entitled to elect all of the directors to be elected at such election by the holders of Common Stock. |
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D. Removal . Except as otherwise provided in the Bylaws of the Corporation, and subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, if any, any director may be removed from office as follows:
1. | Removal for Cause . Any director may be removed from office for cause by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of the issued and outstanding shares of Common Stock and Special Stock (and any series of Preferred Stock then entitled to vote at an election of directors), voting together as a single class. |
2. | Special Stock Director Removal Without Cause . Any director elected by the vote or written consent of the holders of Special Stock, voting or consenting separately as a class, may be removed from office at any time, without cause, solely by the affirmative vote or written consent of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of the issued and outstanding shares of Special Stock, voting or consenting separately as a class. |
3. | Director Removal Without Cause . Any director elected by the vote of the holders of Common Stock, voting separately as a class, may be removed from office at any time, without cause, solely by the affirmative vote of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of the issued and outstanding shares of Common Stock, voting separately as a class. |
E. Vacancies .
1. | Except as otherwise provided in Article VI , Section E(2) below or the Bylaws of the Corporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority vote of the directors then in office, although less than a quorum, or by a sole remaining director. Any director so chosen shall hold office until the next annual meeting of the stockholders and until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation or removal. |
2. | At any time when the Management Services Agreement (as defined in Article IX ) is in effect and the Manager or any Manager Affiliate (as defined in the Management Services Agreement) holds at least 200,000 shares of Common Stock (as adjusted to reflect any subsequent equity splits or similar recapitalizations), any vacancy in the Board of Directors of a director elected by the holders of Special Stock, voting or consenting separately as a class, pursuant to Section C of this Article VI , shall be filled only by a vote or written consent of the holders of Special Stock, voting or consenting separately as a class. At any time when the Management Services Agreement is not in effect or the Manager or any Manager Affiliate (as defined in the Management Services Agreement) no longer holds at least 200,000 shares of Common Stock (as adjusted to reflect any subsequent equity splits or similar recapitalizations), such vacancy shall be filled by a majority vote of the directors then in office, although less than a quorum, or by a sole remaining director, or if there are none, by a vote of the holders of Common Stock. Any vacancy in the Board of Directors of a director elected by the holders of Common Stock pursuant to Section C of this Article VI , shall be filled only by a majority vote of the directors then in office, although less than a quorum, or by a sole remaining director, or if there are none, by a vote of the holders of Common Stock. |
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Article
VII
A. Amendment of Bylaws . In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation by resolution adopted by the affirmative vote of a majority of the then total number of directors in office (the “ Entire Board of Directors ”).
Article
VIII
MATTERS RELATING TO STOCKHOLDERS
A. No Stockholder Action Without a Meeting . Except for actions taken by written consent by the holders of Special Stock consenting separately as a class or as otherwise expressly provided by the terms of any series of Preferred Stock or any other class of stock permitting the holders of such series to act by written consent, the stockholders of the Corporation shall take any action required or permitted only at an annual or special meeting of the stockholders duly called and noticed, and no action shall be taken by the stockholders by written consent. For the avoidance of doubt, any action as to which a class vote of the holders of Special Stock is required pursuant to the terms of this Certificate of Incorporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding Special Stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of Special Stock entitled to vote thereon were present and voted and shall be delivered to the Corporation.
B. Special Meetings . Special meetings of the stockholders 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.
C. No Cumulative Voting . No stockholder will be permitted to cumulate votes at any election of directors.
Article
IX
MATTERS RELATING TO CERTAIN BUSINESS COMBINATIONS OR TRANSACTIONS
A. Definitions . For the purposes of this Article IX , the following terms have the following meanings:
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“ 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” mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, 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.
“ Associate ” has the meaning ascribed to such term in Rule 12b-2 of the rules promulgated under the Exchange Act.
“ Beneficial Owner ” has the meaning ascribed to such term in Rule 13d-3 of the rules promulgated under the Exchange Act.
“ Business Combination ” means:
(i) any merger or consolidation of the Corporation or any Subsidiary thereof with (A) an Interested Stockholder, or (B) any other Person (whether or not itself an Interested Stockholder) that is, or after such merger or consolidation would be, an Affiliate or Associate of an Interested Stockholder; or
(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 Stockholder or an Affiliate or Associate of an Interested Stockholder of any assets of the Corporation or any Subsidiary thereof having an aggregate Fair Market Value of not less than ten percent (10%) of the Net Investment Value of the Corporation; or
(iii) the issuance or transfer by the Corporation or any Subsidiary thereof (in one transaction or a series of transactions) of any securities of the Corporation or any Subsidiary thereof to, or proposed by or on behalf of, an Interested Stockholder or an Affiliate or Associate of an Interested Stockholder 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 Corporation; or
(iv) any spinoff or split-up of any kind of the Corporation or any Subsidiary thereof, proposed by or on behalf of an Interested Stockholder or an Affiliate or Associate of an Interested Stockholder; or
(v) any reclassification of stock (including any reverse stock split) or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any Subsidiary thereof, or any other transaction (whether or not with or into or otherwise involving an Interested Stockholder), that has the effect, directly or indirectly, of increasing the percentage of the outstanding shares of (A) any class of equity securities of the Corporation or any Subsidiary thereof or (B) any class of securities of the Corporation or any Subsidiary thereof convertible into or exchangeable for stock or equity securities of any Subsidiary of the Corporation, that are directly or indirectly owned by an Interested Stockholder and its Affiliates and Associates; or
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(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 Corporation who (A) is neither the Interested Stockholder 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 Stockholder, 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 Stockholder became an Interested Stockholder, 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.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Fair Market Value ” means: (i) in the case of equity securities, the average of the closing sale prices during the 10-day period immediately preceding the date in question of such equity securities:
(1) on the New York Stock Exchange (the “ NYSE ”) (regular way);
(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.
“ Fiscal Quarter ” means any three (3)-month period commencing on each of January 1, April 1, July 1 and October 1 and ending on the last date before the next such date.
“ Future Investment ” means a contractual commitment to invest represented by a definitive agreement.
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“ Interested Stockholder ” means any Person (other than the Manager, the Corporation or any Subsidiary of the Corporation, any employee benefit plan maintained by the Corporation or any Subsidiary thereof 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 of stock of the Corporation and who did not become the Beneficial Owner of such amount of shares of stock pursuant to a transaction that was approved by the affirmative vote of a majority of the Entire Board of Directors; or
(ii) is an assignee of, or has otherwise succeeded to, any shares of stock of the Corporation of which an Interested Stockholder 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 Stockholder, the shares of stock that may be issuable or exchangeable by the Corporation to the Interested Stockholder 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 of stock that may be issuable or exchangeable by the Corporation 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 Stockholder.
“ Managed Subsidiary ” means MIC Ohana Corporation and any directly owned Subsidiary of the Corporation that becomes party to the Management Services Agreement, from time to time.
“ Management Services Agreement ” means that certain Third Amended and Restated Management Services Agreement, dated as of May 21, 2015, as may be amended from time to time, by and among the Corporation as successor-in-interest to Macquarie Infrastructure Company LLC, the Manager, MIC Ohana Corporation and any directly owned Subsidiary of the Company as from time to time may exist and that has executed a counterpart of such agreement.
“ Market Value of Stock ” means the product of (1) the average number of shares of 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 stock traded on the NYSE over those fifteen (15) Trading Days.
“ Net Investment Value ” means:
(a) the Market Value of Stock; plus
(b) the amount of any borrowings (other than intercompany borrowings) of the Corporation and its Managed Subsidiaries (but not including borrowings on behalf of any Subsidiary of the Managed Subsidiaries); plus
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(c) the value of Future Investments of the Corporation 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 Corporation 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).
“ Person ” means any individual, partnership (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity as well as any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act.
“ Property ” means all real and personal property acquired by the Corporation, including cash, and any improvements thereto, and shall include both tangible and intangible property.
“ Subsidiary ” means any corporation, partnership, joint venture, limited liability company, association or other entity in which any Person owns, directly or indirectly, more than fifty percent (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.
“ Trading Day ” means a day on which the shares of stock of the Corporation (i) have not been suspended from trading on any national or regional securities exchange or association or over-the-counter market at the close of business and (ii) 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 of stock of the Corporation.
B. Vote Generally Required . Subject to the provisions of Section D of this Article IX , the Corporation shall not (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 Board of Directors shall adopt a resolution, by the affirmative vote of at least a majority of the Entire Board of Directors, approving such action and unless such action shall be approved by the affirmative vote of the stockholders holding a majority of the voting power of the issued and outstanding shares of stock of the Corporation 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 an Affiliate or Associate thereof. The notice of the meeting at which such resolution is to be considered will so state.
C. Vote for Business Combinations . The affirmative vote of the holders of record of outstanding shares of stock representing at least sixty-six and two-thirds percent (66 2/3%) of the then outstanding shares of stock of the Corporation (excluding shares of stock held by the Interested Stockholder or any Affiliate or Associate of an Interested Stockholder) 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.
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D. 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 IX , including, without limitation, (a) whether a Person is an Interested Stockholder, (b) the number of shares of stock of the Corporation beneficially owned by any Person, (c) whether a Person is an Affiliate or Associate of another, and (d) the Fair Market Value of the equity securities of the Corporation or 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 IX .
E. No Effect on Fiduciary Obligations . Nothing contained in this Article IX shall be construed to relieve the members of the Board of Directors or an Interested Stockholder from any fiduciary obligation imposed by law.
F. Miscellaneous . In addition to any affirmative vote required by law, this Certificate of Incorporation or by the Bylaws of the Corporation, the affirmative vote of a majority of the then outstanding shares of stock of the Corporation held by the holders of record of outstanding shares of stock (excluding shares of stock held by the Interested Stockholder or an Affiliate or Associate of an Interested Stockholder) shall be required to approve the sale or transfer by an Interested Stockholder or an Affiliate or Associate of an Interested Stockholder to the Corporation or any Subsidiary of the Corporation (in one transaction or a series of transactions) of any securities of the Corporation or any Subsidiary of the Corporation in exchange for cash or securities of the Corporation or any Subsidiary of the Corporation. 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
X
LIMITATION OF LIABILITY
To the fullest extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Neither any amendment nor repeal of this Article X , nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article X , shall eliminate or reduce the effect of this Article X in respect of any matter occurring, or any cause of action, suit or proceeding accruing or arising or that, but for this Article X , would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
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Article
XI
INDEMNIFICATION
Subject to any provisions in the Bylaws of the Corporation related to indemnification of directors or officers of the Corporation, the Corporation shall indemnify, to the fullest extent permitted by applicable law, any director or officer of the Corporation who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ Proceeding ”) by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, partner, member, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
The Corporation shall have the power to indemnify, to the extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, any employee or agent of the Corporation who was or is a party or is threatened to be made a party to any Proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, partner, member, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
A right to indemnification or to advancement of expenses arising under a provision of this Certificate of Incorporation or a bylaw of the Corporation shall not be eliminated or impaired by an amendment to this Certificate of Incorporation or the Bylaws of the Corporation after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
Article
XII
SEVERABILITY
If any provision of this Certificate of Incorporation becomes or is declared on any ground by a court of competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Certificate of Incorporation, and the court will replace such illegal, void or unenforceable provision of this Certificate of Incorporation with a valid and enforceable provision that most accurately reflects the Corporation’s intent, in order to achieve, to the maximum extent possible, the same economic, business and other purposes of the illegal, void or unenforceable provision. The balance of this Certificate of Incorporation shall be enforceable in accordance with its terms.
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This Certificate of Incorporation shall become effective at 12:01 a.m. (Eastern Time) on May 21, 2015.
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IN WITNESS WHEREOF, Macquarie Infrastructure Corporation has caused this Certificate of Incorporation to be signed by the Incorporator of the Corporation on this 20th day of May, 2015.
By: | /s/ Michael Kernan | |
Name: | Michael Kernan | |
Title: | Incorporator |
Exhibit 3.2
BYLAWS OF
MACQUARIE INFRASTRUCTURE CORPORATION
(a Delaware corporation)
Date of Adoption: May 21, 2015
Table of Contents
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( ii ) |
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BYLAWS OF MACQUARIE INFRASTRUCTURE CORPORATION
Article
I
THE CORPORATION
1.1 Name .
(i) The name of the corporation is Macquarie Infrastructure Corporation (the “ Corporation ”) and all business of the Corporation shall be conducted in such name. The Board of Directors may change the name of the Corporation upon ten (10) days’ written notice to the stockholders, which name change shall be effective upon the filing of a certificate of amendment with the Secretary of State of the State of Delaware.
(ii) Upon the resignation of Macquarie Infrastructure Management (USA) Inc. (the “ Manager ”) and the termination of that certain Third Amended and Restated Management Services Agreement, dated as of May 21, 2015, by and among the Corporation as successor-in-interest to Macquarie Infrastructure Company LLC, the Manager, MIC Ohana Corporation and any directly owned Subsidiary of the Company as from time to time may exist and that has executed a counterpart of such agreement (as may be amended from time to time, the “ Management Services Agreement ”) or within thirty (30) days of the delisting of the stock of the Corporation as provided in the Management Services Agreement unless otherwise approved in writing by the Manager, the board of directors of the Corporation (the “ Board of Directors ”) shall, within thirty (30) days of such resignation and termination or such date, cause the Corporation and any of its Subsidiaries to cease using the Macquarie brand entirely, including, without limitation, changing their respective names; provided that, to the extent the Board of Directors deems it necessary or advisable, the Corporation and its Subsidiaries may use “Macquarie” in referencing their previous names.
(iii) Upon the termination of the Management Services Agreement and the removal of the Manager by the Board of Directors in accordance with the terms of the Management Services Agreement, the Board of Directors of the Corporation shall cause the Corporation and, MIC Ohana Corporation and any directly owned Subsidiary of the Corporation that becomes party to the Management Services Agreement, from time to time (together, the “ Managed Subsidiaries ”), to cease using the Macquarie brand entirely, including, without limitation, changing their respective names; provided that, to the extent the Board of Directors deems it necessary or advisable, the Corporation and its Subsidiaries may use “Macquarie” in referencing their previous names.
1.2 Registered Office .
The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.
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1.3 Other Offices .
The Corporation may have such offices, either within or without the State of Delaware, as the Board of Directors may designate or as the business of the Corporation may from time to time require.
1.4 Principal Place of Business .
The principal executive offices of the Corporation are at 125 West 55th Street, New York, New York 10019. The Board of Directors may change the principal executive offices of the Corporation to any other place within or without the State of Delaware by resolution.
As used in these Bylaws, “ Subsidiary ” means any corporation, partnership, joint venture, limited liability company, association or other entity in which any Person owns, directly or indirectly, more than fifty percent (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.
As used in these Bylaws, “ Person ” means any individual, partnership (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity as well as any syndicate or group deemed to be a person under Section 14(d)(2) of the Securities and Exchange Act of 1934, as amended (the “ Exchange Act ”).
Article
II
STOCKHOLDERS
2.1 Annual Meetings of Stockholders .
The annual meeting of the stockholders shall be held on 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.
2.2 Special Meetings of Stockholders .
Special meetings of the stockholders shall be held on such date, at such time and at such place (if any) within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Special meetings of the stockholders 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.
2.3 Place of Meeting .
The Board of Directors may designate the place (if any) of meeting for any meeting of the stockholders. If no designation is made by the Board of Directors, the place of meeting shall be the principal executive office of the Corporation. In lieu of holding any meeting of the stockholders at a designated place, the Board of Directors may, in its sole discretion, determine that any meeting of the stockholders may be held solely by means of remote communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “ DGCL ”).
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2.4 Notice of Meeting .
(i) 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 stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, shall be prepared and delivered by the Corporation 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 stockholder 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 the stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Any previously scheduled meeting of the stockholders may be postponed, and (unless these Bylaws otherwise provide) any special meeting of the stockholders may be canceled, by resolution of the Board of Directors upon public notice given prior to the time previously scheduled for such meeting of the stockholders.
(ii) Notice to stockholders shall be given personally, by mail or, to the extent and in the manner permitted by applicable law, electronically to each stockholder of record. If mailed, such notice shall be delivered by postage prepaid envelope directed to each holder at such stockholder’s address as it appears in the records of the Corporation 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 stockholder has consented to receive notice; (2) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (3) if by posting on an electronic network together with separate notice to the stockholder 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 stockholder. An affidavit of the Secretary or an assistant Secretary or of the transfer agent or other agent of the Corporation 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.
(iii) Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder either in a writing signed by such stockholder 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 stockholder.
2.5 Record Date .
(i) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders 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) nor less 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 stockholders entitled to notice of or to vote at any meeting of stockholders 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.
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(ii) A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of such meeting; provided, however , that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the reconvened meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such reconvened meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the provisions of Section 213 of the DGCL and this Section 2.5 at the reconvened meeting.
(iii) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, 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, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
2.6 Quorum and Adjournment .
Except as otherwise provided by law, the Certificate of Incorporation of the Corporation (the “ Certificate of Incorporation ”), these Bylaws or the rules of any applicable stock exchange, the holders of a majority of the voting power of the stock issued and outstanding and entitled to vote, present in person or by proxy, shall constitute a quorum at a meeting of stockholders. Where a separate vote by a class or series or classes or series is required, a majority of the voting power of the issued and outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter, except as otherwise required by law, the Certificate of Incorporation, these Bylaws or the rules of any applicable stock exchange.
The Chairman of the Board or the holders of a majority of the voting power of the stock issued and outstanding and entitled to vote so represented may adjourn the meeting from time to time, whether or not there is such a quorum. The stockholders 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 stockholders to leave less than a quorum.
When a meeting is adjourned to another time and place, if any, unless otherwise provided by these Bylaws, 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 stockholders and proxyholders may be deemed to be present in person and vote at such reconvened meeting are announced at the meeting at which the adjournment is taken. At the reconvened meeting, the stockholders may transact any business that might have been transacted at the original meeting. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders 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 in accordance with Section 213(a) of the DGCL and Section 2.5 of these Bylaws. 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 stockholder entitled to vote at the meeting.
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2.7 Proxies .
Each stockholder entitled to vote at a meeting of stockholders may authorize another Person or Persons to act for such stockholder by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. A written proxy may be in the form of a telegram, cablegram, or other means of electronic transmission which sets forth or is submitted with information from which it can be determined that the telegram, cablegram, or other means of electronic transmission was authorized by the stockholder.
2.8 Nominations and Notice of Stockholder Business .
(i) General .
(a) Only individuals who are nominated in accordance with the procedures set forth in this Section 2.8 shall be eligible to be elected as directors at a meeting of stockholders and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.8. Except as otherwise provided by applicable law or this Section 2.8, the Chairman of the Board shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 2.8 and, if any proposed nomination or business is not in compliance with this Section 2.8 (including if the stockholder or stockholders of record intending to propose the business (or a qualified representative of such stockholder) did not appear at the meeting to present the proposed business), to declare that such defective proposal or nomination shall be disregarded. To be considered a qualified representative of such stockholder, a person must be a duly authorized officer, manager, or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as a proxy at the meeting and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting. The requirements of this Section 2.8 shall apply to any nominations or business to be brought by a stockholder before a meeting of the stockholders notwithstanding (A) any reference in these Bylaws to the Exchange Act or the rules or regulations promulgated thereunder or (B) that the underlying matter may already be the subject of a notice to the stockholders or public disclosure. Subject to compliance with the requirements of this Section 2.8, nothing in this Section 2.8 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act (or any successor provision of law).
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(b) For purposes of this Section 2.8, “ public announcement ” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission (the “ SEC ”) pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(c) Notwithstanding the foregoing provisions of this Section 2.8, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated under the Securities Act of 1933, as amended (the “ Securities Act ”) or the Exchange Act (the “ Rules and Regulations ”) with respect to the matters set forth in this Section 2.8. Nothing in this Section 2.8 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(ii) Annual Meetings of Stockholders .
(a) Nominations of individuals for election to the Board of Directors of the Corporation, other than the director to be elected by the holders of the Corporation’s special stock, voting or consenting separately as a class, in accordance with the provisions of the Certificate of Incorporation, and the proposal of business to be considered by the stockholders, may be made at an annual meeting of stockholders (A) pursuant to the Corporation’s notice of meeting delivered pursuant to Section 2.4 hereof, (B) by or at the direction of the Board of Directors or (C) by any stockholder who is entitled to vote at the meeting, who complies with the notice procedures set forth in clauses (b) and (c) of this Section 2.8(ii).
In addition to any other applicable requirements, for a nomination for election of a director to be made by a stockholder or for business to be properly brought before an annual meeting by a stockholder, such stockholder must (A) be a stockholder 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 2.8(ii) and (2) the record date for the determination of stockholders 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 2.8(ii) to the Secretary.
(b) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of the first paragraph of Section 2.8(ii)(a), even if such matter is already the subject of any notice to the stockholders or public disclosure from the Board of Directors, the stockholder 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 stockholder action under the DGCL and, if such stockholder, or the beneficial owner on whose behalf any such proposal or nomination is made or any Associated Person, solicits or participates in the solicitation of proxies in support of such proposal, such stockholder must have timely indicated its, or each such person’s, intention to do so as provided in Section 2.8(ii)(c) below. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation 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. 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 stockholder’s notice as described in this Section 2.8(ii).
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(c) Subject to Section 2.8(ii)(a), for nominations to be properly brought before an annual meeting by a stockholder such stockholder’s notice shall set forth: (A) as to each individual whom the stockholder proposes to nominate for election or reelection as a director and each Proposed Nominee Associated Person, as applicable, (1) the name, age, business address and residence address of such person; (2) the principal occupation or employment of such person; (3) the class and number of shares of capital stock of the Corporation which are owned of record and beneficially owned by such person; (4) a description of all arrangements or understandings between such stockholder and each such person pursuant to which the nomination or nominations are to be made by the stockholder; and (5) any other information relating to such person that is required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitations of proxies for elections of directors, or is otherwise required, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including, without limitation, such nominee’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); and (B) as to such stockholder giving notice and each Stockholder Associated Person, the information required to be provided pursuant to Section 2.8(ii)(d) below. A stockholder providing notice of any nomination as required under this Section 2.8(ii)(c) shall further update and supplement such notice so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the applicable meeting and as of the date that is ten (10) business days prior to such meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for such meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight (8) business days prior to the date for such meeting or any adjournment or postponement thereof (in the case of the update and supplement required to be made as of ten (10) business days prior to such meeting or any adjournment or postponement thereof). In addition, a stockholder providing notice of any nomination shall update and supplement such notice from time to time so that the information provided or required to be provided in such notice pursuant to this Section 2.8(ii)(c) shall be true and correct in all material respects, and such update and supplement shall be received by the Secretary at the principal executive offices of the Corporation not later than three (3) business days following the occurrence of any event, development or occurrence which would cause the information provided or required to be provided to be not true and correct in all material respects (or if such three (3) business day period ends after the date of the applicable meeting, not later than the day prior to such meeting). Notwithstanding anything in these Bylaws to the contrary, no nomination shall be brought forth at a meeting except nominations brought before the meeting in accordance with the procedures set forth in this Section 2.8(ii). Notwithstanding the foregoing provisions of this Section 2.8(ii)(c), a stockholder shall also comply with all applicable requirements of the Exchange Act with respect to matters set forth in this Section 2.8(ii)(c).
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(d) Subject to Section 2.8(ii)(a), as to any other business that the stockholder proposes to bring before the meeting, such stockholder’s notice shall set forth: (A) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), (B) as to such stockholder and each Stockholder Associated Person, (1) the name and address, as they appear on the Corporation’s books, of each such person and of any holder of record of the stockholder’s shares, (2) the class and number of shares of the Corporation which are held of record or beneficially owned by each such person and owned by any holder of record of each such person’s shares, as of the date of such stockholder’s notice, and a representation that such stockholder will notify the Corporation in writing of the class and number of such shares held of record or beneficially owned by each such person as of the record date for the meeting not later than five (5) business days following the later of the record date or the date notice of the record date is first publicly disclosed, (3) any material interest of each such person in such business, (4) a description of any agreement, arrangement or understanding with respect to such business between or among each such person, and a representation that such stockholder will notify the Corporation in writing of any such agreement, arrangement or understanding in effect as of the record date for the meeting not later than five (5) business days following the later of the record date or the date notice of the record date is first publicly disclosed, (5) a description of any agreement, arrangement or understanding (including any derivative instruments, swaps, warrants, short positions, profit interests, options, hedging transactions, borrowed or loaned shares or other transactions) that has been entered into as of the date of such stockholder’s notice by, or on behalf of, each such person, the effect or intent of which is to mitigate loss to, manage risk or benefit from share price changes for, or increase or decrease the voting power of each such person with respect to shares of stock of the Corporation, and a representation that such stockholder will notify the Corporation in writing of any such agreement, arrangement or understanding in effect as of the record date for the meeting not later than five (5) business days following the later of the record date or the date notice of the record date is first publicly disclosed, (6) a representation that such stockholder is a holder of record or beneficial owner of shares of the Corporation entitled to vote at the annual meeting and intends to appear in person or by proxy at the meeting to propose such business, (7) whether any such person, alone or as part of a group, intends to deliver a proxy statement and/or form of proxy or to otherwise solicit or participate in the solicitation of proxies in favor of such proposal, and (8) any other information that is required to be provided by each such person pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. A stockholder providing notice of any matter (other than the nomination of a person for election to the Board of Directors) shall further update and supplement such notice so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the applicable meeting and as of the date that is ten (10) business days prior to such meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five business days after the record date for such meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight (8) business days prior to the date for such meeting or any adjournment or postponement thereof (in the case of the update and supplement required to be made as of ten (10) business days prior to such meeting or any adjournment or postponement thereof). In addition, a stockholder providing notice of any matter (other than the nomination of a person for election to the Board of Directors) shall update and supplement such notice from time to time so that the information provided or required to be provided in such notice pursuant to this Section 2.8(ii)(d) shall be true and correct in all material respects, and such update and supplement shall be received by the Secretary at the principal executive offices of the Corporation not later than three (3) business days following the occurrence of any event, development or occurrence which would cause the information provided or required to be provided to be not true and correct in all material respects (or if such three (3) business day period ends after the date of the applicable meeting, not later than the day prior to such meeting). Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an annual meeting except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.8(ii). Notwithstanding the foregoing provisions of this Section 2.8(ii), a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to matters set forth in this Section 2.8.
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For purposes of these Bylaws, (a) “ Associated Person ” shall mean any Stockholder Associated Person or Proposed Nominee Associated Person, (b) “ Proposed Nominee Associated Persons ” shall mean, with respect to the applicable Proposed Nominee, (1) any beneficial owner of shares of the Corporation owned of record or beneficially by such Proposed Nominee, (2) any associate of such Proposed Nominee or beneficial owner, (3) any affiliate of such Proposed Nominee or beneficial owner and (4) any other person acting in concert, directly or indirectly pursuant to any agreement, arrangement, understanding or otherwise, whether written or oral, with such Proposed Nominee or beneficial owner (or any of their respective affiliates or associates) and (c) “ Stockholder Associated Person(s) ” shall mean, with respect to the applicable stockholder, (1) any beneficial owner of shares of the Corporation owned of record or beneficially by such stockholder, (2) any associate of such stockholder or beneficial owner, (3) any affiliate of such stockholder or beneficial owner and (4) any other person acting in concert, directly or indirectly pursuant to any agreement, arrangement, understanding or otherwise, whether written or oral, with such stockholder or beneficial owner (or any of their respective affiliates or associates).
(iii) Special Meetings of Stockholders .
(a) Nominations of individuals for election to the Board of Directors, other than the director to be elected by the holders of the Corporation’s special stock, voting or consenting separately as a class, in accordance with the provisions of the Certificate of Incorporation, may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (A) by or at the direction of the Board of Directors, or (B) by any stockholder who is entitled to vote at the meeting who complies with the notice procedures set forth in this Section 2.8. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting pursuant to Section 2.4 of these Bylaws.
In addition to any other applicable requirements, for a nomination for election of a director to be made by a stockholder, such stockholder must (A) be a stockholder 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 2.8(iii) and (2) the record date for the determination of stockholders entitled to vote at such special meeting, and (B) have given timely notice thereof in proper written form in accordance with the requirements of Section 2.8(ii) to the Secretary.
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(b) In the event the Corporation calls a special meeting of stockholders for the purpose of electing one (1) or more directors to the Board of Directors, any such stockholder may nominate such number of individuals for election to such position(s) as are specified in the Corporation’s notice of meeting, if the stockholder’s notice as required by clause (c) of Section 2.8(ii) of these Bylaws shall be delivered to the Secretary at the principal executive offices of the Corporation 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 stockholder’s notice as described above.
2.9 Procedure for Election of Directors; Voting .
The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of the Certificate of Incorporation and Section 2.5 of these Bylaws, subject to Section 217 (relating to voting rights of fiduciaries, pledgors and joint owners of stock) and Section 218 (relating to voting trusts and other voting agreements) of the DGCL.
Except as may be otherwise provided in the Certificate of Incorporation, each stockholder shall be entitled to one (1) vote for each share of capital stock held by such stockholder.
Except as otherwise provided by law, the Certificate of Incorporation, these Bylaws or the rules of any applicable stock exchange, the election of directors submitted to stockholders at any meeting shall be decided by a plurality of the votes cast thereon. Except as otherwise provided by law, the Certificate of Incorporation, these Bylaws or the rules of any applicable stock exchange, all matters other than the election of directors submitted to the stockholders at any meeting shall be decided by the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the meeting of stockholders. Where a separate vote by a class or series or classes or series is required, in all matters other than the election of directors, the affirmative vote of the majority of the voting power of shares of such class or series or classes or series present in person or represented by proxy at the meeting shall be the act of such class or series or classes or series, except as otherwise provided by law, the Certificate of Incorporation, these Bylaws or the rules of any applicable stock exchange.
The vote on any matter at a meeting, including the election of directors, shall be by written ballot. Each ballot shall be signed by the stockholder voting, or by such stockholder’s proxy, and shall state the number of shares of capital stock voted.
2.10 Inspectors of Elections; Opening and Closing the Polls .
(i) 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 Corporation, 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 stockholders, 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 DGCL.
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The inspectors of election shall perform their duties impartially, in good faith, to the best of their ability and as expeditiously as is practical. If there are three (3) inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein.
(ii) The Chairman of the Board shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting.
2.11 Conduct of Business .
The chairperson of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of business. The chairperson of any meeting of stockholders shall be designated by the Board of Directors; in the absence of such designation, the Chairman of the Board, if any, the Chief Executive Officer (in the absence of the Chairman of the Board) or the lead Independent Director (in the absence of the Chairman of the Board and the Chief Executive Officer), or in their absence any other executive officer of the Corporation, shall serve as chairperson of the stockholder meeting.
As used in these Bylaws, “ Independent Director ” means a director who (i) is not an officer or employee of the Corporation, or an officer, director or employee of any Subsidiary of the Corporation, (ii) was not appointed as a director pursuant to the terms of the Management Services Agreement, (iii) for so long as the Management Services Agreement is in effect, is not affiliated with the Manager or Macquarie Group Limited, and (iv) who complies with the independence requirements under the Exchange Act, the Rules and Regulations and the applicable rules, if any, of the principal U.S. securities exchange on which the shares of stock of the Corporation are listed or quoted, as the case may be (the “ Applicable Listing Rules ”).
2.12 Waiver of Notice .
Whenever any notice is required to be given to any stockholder by the DGCL, the Certificate of Incorporation or these Bylaws, 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 the stockholders need be specified in any written waiver of notice or any waiver by electronic transmission of such meeting.
2.13 Remote Communication .
For the purposes of these Bylaws, 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, stockholders and proxyholders may, by means of remote communication:
(i) participate in a meeting of stockholders; and
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(ii) be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided, however , that (i) the Corporation 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 stockholder or proxyholder, (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings and (iii) if any stockholder 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 Corporation.
2.14 No Stockholder Action Without a Meeting .
Subject to the rights of the holders of the shares of any series of preferred stock or any other class of stock or series thereof that have been expressly granted the right to take action by written consent, stockholders of the Corporation shall take any action required or permitted only at a meeting of stockholders duly called and noticed, and no action shall be taken by the stockholders by written consent.
2.15 List of Stockholders .
The Secretary shall make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, 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 Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders. 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 stockholder who is present.
Article
III
DIRECTORS
3.1 General Powers .
The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors, except as may be otherwise provided in the DGCL or the Certificate of Incorporation. No director is authorized to act individually on behalf of the Corporation and the Board of Directors shall only take action in accordance with the quorum and other requirements provided by these Bylaws.
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In addition to the powers and authorities expressly conferred upon it by these Bylaws, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by applicable law, including the Rules and Regulations, or by the Certificate of Incorporation or by these Bylaws required to be exercised or done by the stockholders. Without limiting the generality of the foregoing, it shall be the responsibility of the Board of Directors to establish broad objectives and the general course of the business, determine basic policies, appraise the adequacy of overall results, and generally represent and further the interests of the stockholders.
3.2 Number, Tenure and Qualifications .
The number of directors shall be fixed from time to time exclusively pursuant to a resolution adopted by the Board of Directors, but shall consist of not less than four (4) nor more than twelve (12) directors. However, no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. The term of each director shall be the period from the effective date of such director’s election to the next annual meeting of stockholders until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation or removal. Directors need not be residents of the State of Delaware or stockholders.
3.3 Election of Directors .
Except as provided in Section 3.6 and with respect to the director to be elected by the holders of the Corporation’s special stock, voting or consenting separately as a class, in accordance with the provisions of the Certificate of Incorporation, the directors shall be elected at the annual meeting of stockholders. At any meeting of stockholders duly called and held for the election of directors at which a quorum is present, directors shall be elected by a plurality of the voting power of the shares of the Corporation’s common stock present in person or represented by proxy at the meeting of stockholders. For the avoidance of doubt, (i) the holders of the Corporation’s special stock may elect the director to be elected by the holders of the Corporation’s special stock, voting or consenting separately as a class, in accordance with the provisions of the Certificate of Incorporation, at a meeting of the holders of the Corporation’s special stock or by written consent and (ii) the holders of the Corporation’s common stock may elect all other directors, voting separately as a class, in accordance with the provisions of the Certificate of Incorporation, at a meeting of the holders of the Corporation’s common stock.
3.4 Removal .
Any director may be removed from office in accordance with the provisions of the Certificate of Incorporation. If any directors are so removed, new directors may be elected by the stockholders at the same meeting in accordance with the provisions of the Certificate of Incorporation and Section 3.3 hereof.
3.5 Resignations .
Any director may resign at any time upon notice of such resignation to the Corporation. A resignation is effective when the resignation is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. An Independent Director who ceases to be independent shall promptly resign to the extent required for the Corporation or the Manager to comply with applicable laws, rules and regulations.
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3.6 Vacancies and Newly Created Directorships .
Vacancies and newly created directorships shall be filled in accordance with the provisions of the Certificate of Incorporation.
If at any time, by reason of death or resignation or other cause, the Corporation should have no directors in office, then any officer or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with the provisions of the Certificate of Incorporation or these Bylaws, or may apply to the Delaware Court of Chancery for a decree summarily ordering an election as provided in Section 211 of the DGCL.
If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole Board of Directors (as constituted immediately prior to any such increase), the Delaware Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent (10%) of the voting power of the voting stock at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office as aforesaid, which election shall be governed by the provisions of Section 211 of the DGCL as far as applicable.
3.7 Appointment of Chairman of the Board .
For so long as the holders of the Corporation’s special stock, voting or consenting separately as a class, are entitled to elect a director of the Board of Directors pursuant to the provisions of the Certificate of Incorporation, such director shall serve as Chairman of the Board. In all other cases, the Board of Directors shall appoint a Chairman of the Board from among its members.
3.8 Chairman of the Board .
The Chairman of the Board shall be a member of the Board of Directors. The Chairman of the Board is not required to be an employee of the Corporation. The Chairman of the Board, if present, shall preside at all meetings of the Board of Directors. If the Chairman of the Board is unavailable for any reason, the duties of the Chairman of the Board shall be performed, and the Chairman of the Board’s authority may be exercised, by a director designated for this purpose by the remaining members of the Board of Directors. The Chairman of the Board shall perform such other duties and have such other powers as may be prescribed by the Board of Directors or these Bylaws, all in accordance with basic policies as may be established by the Corporation, and subject to the approval and oversight of the Board of Directors.
3.9 Regular Meetings .
The Board of Directors may, by resolution, provide the time and place (if any) for the holding of regular meetings without any other notice than such resolution. Unless otherwise determined by the Board of Directors, the Secretary shall act as secretary at all regular meetings of the Board of Directors, and in the Secretary’s absence a temporary secretary shall be appointed by the chairman of the meeting.
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3.10 Special Meetings .
Special meetings of the Board of Directors shall be called at the request of the Chief Executive Officer, the Chairman of the Board or a majority of the Board of Directors. The Person or Persons authorized to call special meetings of the Board of Directors may fix the place and time of the meetings. Unless otherwise determined by the Board of Directors, the Secretary shall act as secretary at all special meetings of the Board of Directors, and in the Secretary’s absence a temporary secretary shall be appointed by the chairman of the meeting.
3.11 Notice for Special Meetings .
Notice of any special meeting of the Board of Directors shall be mailed by first class mail, postage paid, to each director at his or her business or residence not later than three (3) days before the day on which such meeting is to be held or shall be sent to either of such places by telegraph, express courier service (including, without limitation, Federal Express) or facsimile (directed to the facsimile number to which the director has consented to receive notice) or other electronic transmission (including, but not limited to, an e-mail address at which the director has consented to receive notice), or be communicated to each director personally or by telephone not later than one (1) day before such day of meeting; provided, however , that if the business to be transacted at such special meeting includes a proposed amendment to these Bylaws, notice shall be communicated to each director personally or by telephone or e-mail not later than three (3) days before such day of meeting. Except in the case where the business to be transacted at such special meeting includes a proposed amendment to these Bylaws, neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting. A meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 3.12 hereof, either before or after such meeting.
3.12 Waiver of Notice .
Whenever any notice is required to be given to any director of the Corporation under the DGCL, the Certificate of Incorporation or these Bylaws, 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 in such notice, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors or committee thereof need be specified in any written waiver of notice or any waiver by electronic transmission of notice of such meeting.
3.13 Board Action Without Meeting .
Any action required or permitted to be taken at any meeting by the Board of Directors or any committee or subcommittee thereof, as the case may be, may be taken without a meeting if a consent thereto is signed or transmitted electronically, as the case may be, by all members of the Board of Directors or of such committee or subcommittee, as the case may be, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or such committee or subcommittee; provided, however , that such electronic transmission or transmissions must either set forth or be submitted with information from which it can be determined that the electronic transmission or transmissions were authorized by the director. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
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3.14 Conference Telephone Meetings .
Members of the Board of Directors, or any committee or subcommittee thereof, may participate in a meeting of the Board of Directors or such committee or subcommittee by means of conference telephone or other communications equipment by means of which all Persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
3.15 Quorum .
At all meetings of the Board of Directors, at least fifty percent (50%) of the then total number of directors in office (such total number of directors, the “ Entire Board of Directors ”) shall constitute a quorum for the transaction of business. At all meetings of any committee of the Board of Directors, the presence of a majority of the total number of members of such committee (assuming no vacancies) shall constitute a quorum. The act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act of the Board of Directors or such committee, as the case may be. If a quorum shall not be present at any meeting of the Board of Directors or any committee, a majority of the directors or members, as the case may be, present thereat may adjourn the meeting from time to time without further notice other than announcement at the meeting. The members of the Board of Directors present at a duly organized meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough members of the Board of Directors to leave less than a quorum.
3.16 Compensation .
The directors may be paid their expenses, if any, incurred with respect to their attendance at each meeting of the Board of Directors and may be paid compensation as director or chairman of any committee or subcommittee, as the case may be, as determined by the Compensation Committee. Members of special or standing committees may be allowed like compensation and payment of expenses for attending committee meetings. For so long as the holders of the Corporation’s special stock, voting or consenting separately as a class, are entitled to elect a director of the Board of Directors pursuant to the provisions of the Certificate of Incorporation, the Chairman of the Board shall not receive any compensation from the Corporation for his or her service as Chairman of the Board, but shall be entitled to the payment of all out-of-pocket expenses incurred in attending regular or special meetings of the Board of Directors.
Article
IV
COMMITTEES
4.1 Committees .
(i) The Corporation shall have three (3) standing committees: the Nominating and Governance Committee, the Audit Committee and the Compensation Committee. Each of the Nominating and Governance Committee, the Audit Committee and the Compensation Committee shall adopt by resolution a charter to establish the rules and responsibilities of such committee in accordance with applicable law, including the Rules and Regulations and the Applicable Listing Rules.
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(ii) General .
(a) In addition, the Board of Directors may designate one or more additional committees or subcommittees, with each such committee or subcommittee consisting of such number of directors of the Corporation and having such powers and authority as shall be determined by resolution of the Board of Directors.
(b) All acts done by any committee or subcommittee within the scope of its powers and authority pursuant to these Bylaws and the resolutions adopted by the Board of Directors in accordance with the terms hereof shall be deemed to be, and may be certified as being, done or conferred under authority of the Board of Directors. The Secretary is empowered to certify that any resolution duly adopted by any such committee is binding upon the Corporation and to execute and deliver such certifications from time to time as may be necessary or proper to the conduct of the business of the Corporation.
(c) Regular meetings of committees shall be held at such times as may be determined by resolution of the Board of Directors or the committee or subcommittee in question and no notice shall be required for any regular meeting other than such resolution. A special meeting of any committee or subcommittee shall be called by resolution of the Board of Directors or by the Secretary upon the request of the Chief Executive Officer, the Chairman of the Board or a majority of the members of any committee. Notice of special meetings shall be given to each member of the committee in the same manner as that provided for in Section 3.11 hereof.
4.2 Committee Members .
(i) Each member of any committee of the Board of Directors shall hold office until such member’s successor is elected and has qualified, unless such member sooner dies, resigns or is removed.
(ii) The Board of Directors may designate one or more directors as alternate members of any committee to fill any vacancy on a committee and to fill a vacant chairmanship of a committee, occurring as a result of a member or chairman leaving the committee, whether through death, resignation, removal or otherwise.
4.3 Committee Secretary .
The Secretary shall act as secretary of any committee or subcommittee, unless otherwise provided by the Board of Directors or the committee or subcommittee, as applicable.
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Article
V
OFFICERS
5.1 General .
(i) The officers of the Corporation shall be elected by the Board of Directors, subject to Section 5.1(ii) and Article VI. The officers of the Corporation shall consist of a Chief Executive Officer, a Chief Financial Officer and a Secretary and, subject to clause (ii) of this Section 5.1, such other officers as in the judgment of the Board of Directors may be necessary or desirable, including a General Counsel. All officers elected by the Board of Directors shall have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article V. Such officers shall also have powers and duties as from time to time may be conferred by the Board of Directors or any committee thereof. Any number of offices may be held by the same Person, unless otherwise prohibited by law or these Bylaws. The officers of the Corporation need not be stockholders or directors of the Corporation.
(ii) For so long as the Management Services Agreement is in effect, the Manager shall, subject at all times to the supervision of the Board of Directors, provide and be responsible for the day-to-day management of the Corporation, including the secondment of personnel nominated to serve as the Chief Executive Officer and the Chief Financial Officer. In accordance with the terms of the Management Services Agreement, only the Manager will have the right to nominate officers of the Corporation, including the Secretary and the General Counsel, if any. The Board of Directors shall elect nominated personnel as officers of the Corporation in accordance with this Article V. In the event that the appointment of the Manager is terminated pursuant to the terms of the Management Services Agreement and no replacement manager is retained, the Nominating and Governance Committee shall nominate and the Board of Directors shall elect the officers of the Corporation.
5.2 Election and Term of Office .
Subject to Section 5.1(ii) above, the elected officers of the Corporation shall be elected annually by the Board of Directors at a meeting of the Board of Directors held as soon as is convenient after each annual meeting of the stockholders. Each officer shall hold office until his or her successor shall have been duly elected and qualified or until his or her death or resignation or removal.
5.3 Chief Executive Officer .
The Chief Executive Officer of the Corporation shall, subject to the oversight of the Board of Directors, supervise, coordinate and manage the Corporation’s business and operations, and supervise, coordinate and manage its activities, operating expenses and capital allocation, shall have general authority to exercise all the powers necessary for the Chief Executive Officer of the Corporation and shall perform such other duties and have such other powers as may be prescribed by the Board of Directors or these Bylaws, all in accordance with basic policies as may be established by the Board of Directors.
5.4 Chief Financial Officer .
The Chief Financial Officer shall have responsibility for the financial affairs of the Corporation, including the preparation of financial reports, managing financial risk and overseeing accounting and internal control over financial reporting, subject to the responsibilities of the Audit Committee. In the absence of a General Counsel, the Chief Financial Officer shall be responsible for the performance of the duties of Secretary. The Chief Financial Officer shall perform such other duties and have such other powers as may be prescribed by the Board of Directors or these Bylaws, all in accordance with basic policies as may be established by the Board of Directors and subject to the oversight of the Board of Directors and the Chief Executive Officer.
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5.5 General Counsel .
The General Counsel, if any, shall have responsibility for the legal affairs of the Corporation and for the performance of the duties of the Secretary. The General Counsel shall perform such other duties and have such other powers as may be prescribed by the Board of Directors or these Bylaws, all in accordance with basic policies as may be established by the Board of Directors and subject to the oversight of the Board of Directors and the Chairman of the Board and Chief Executive Officer.
5.6 Secretary .
The Secretary shall act as secretary of all meetings of stockholders and the Board of Directors and any meeting of any committee of the Board of Directors. The Secretary shall prepare and keep or cause to be kept in books provided for the purpose minutes of all meetings of stockholders and the Board of Directors and any meeting of any committee of the Board of Directors; shall see that all notices are duly given in accordance with the provisions of these Bylaws and applicable law; and shall perform all duties incident to the office of Secretary and as required by law and such other duties as may be assigned to him or her from time to time by the Board of Directors.
5.7 Resignations and Removals .
Any officer of the Corporation may resign at any time upon notice of such resignation to the Corporation.
Subject to Section 6.5, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the Board of Directors at any regular or special meeting of the Board of Directors or, except in the case of an officer chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.
5.8 Vacancies .
Subject to Section 5.1(ii) above, a newly created office and a vacancy in any office because of death, resignation or removal may be filled by the Board of Directors for the unexpired portion of the term at any meeting of the Board of Directors.
5.9 Representation of Shares of Other Corporations .
The Chairman of the Board, the Chief Executive Officer, the Secretary or any other Person authorized by the Board of Directors or the Chief Executive Officer, is authorized to vote, represent, and exercise on behalf of the Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of the Corporation. The authority granted herein may be exercised either by such Person directly or by any other Person authorized to do so by proxy or power of attorney duly executed by such Person having the authority.
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Article
VI
MANAGEMENT
6.1 Duties of the Manager .
For so long as the Management Services Agreement is in effect and subject at all times to the oversight of the Board of Directors, the Manager will manage the business of the Corporation and provide its services to the Corporation in accordance with the terms of the Management Services Agreement.
6.2 Secondment of the Chief Executive Officer and Chief Financial Officer .
Pursuant to the terms of the Management Services Agreement, the Manager will arrange for the secondment to the Corporation, on a wholly dedicated basis, individuals acceptable to the Board of Directors to serve as the Chief Executive Officer and Chief Financial Officer.
6.3 Secondment of Additional Officers .
Pursuant to the terms of the Management Services Agreement, the Manager and the Corporation may agree from time to time that the Manager will second to the Corporation one or more additional individuals to serve as officers of the Corporation, upon such terms as the Manager and the Corporation may mutually agree. Any such individuals will have such titles and fulfill such functions as the Manager and the Corporation may mutually agree.
6.4 Election of the Secondees as Officers of the Corporation .
The Board of Directors will elect the seconded Chief Executive Officer and Chief Financial Officer, and any additional individuals seconded to the Corporation by the Manager to serve as officers of the Corporation, as officers of the Corporation in accordance with Article V hereof.
6.5 Removal of Seconded Officers .
For so long as the Management Services Agreement is in effect, the officers of the Corporation seconded by the Manager may only be removed pursuant to the terms of the Management Services Agreement.
6.6 Replacement Manager .
In the event that the Management Services Agreement is terminated and the Board of Directors determines that a replacement manager should be retained to provide for the management of the Corporation pursuant to a management or other services agreement, the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the meeting of stockholders shall be required to retain such replacement manager.
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Article
VII
STOCK
7.1 Stock Certificates .
The shares of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Every holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of the Corporation by the Chairman of the Board, or the Chief Executive Officer, and by the Treasurer or an assistant Treasurer, or the Secretary or an assistant Secretary of the Corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such Person were such officer, transfer agent or registrar at the date of issue. The Corporation shall not have power to issue a certificate in bearer form.
7.2 Special Designation on Certificates .
If the Corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock; provided, however , that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to this Section 7.2 or Sections 151, 156, 202(a) or 218(a) of the DGCL or with respect to this Section 7.2 a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated stock and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.
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7.3 Lost Certificates .
Except as provided in this Section 7.3, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the Corporation and cancelled at the same time. The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
7.4 Dividends .
The Board of Directors, subject to any restrictions contained in the Certificate of Incorporation or applicable law may declare and pay dividends upon the shares of the Corporation’s capital stock.
The Board of Directors may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any Property, and meeting contingencies.
7.5 Transfer of Stock .
Transfers of record of shares of stock of the Corporation shall be made only upon its books by the holders thereof, in person or by an attorney duly authorized, and, subject to Section 7.3 of these Bylaws, if such stock is certificated, upon the surrender of a certificate or certificates for a like number of shares, properly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer.
7.6 Stock Transfer Agreements .
The Corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.
7.7 Registered Stockholders .
The Corporation:
(i) shall be entitled to recognize the exclusive right of a Person registered on its books as the owner of shares to receive dividends and to vote as such owner;
(ii) shall be entitled to hold liable for calls and assessments the Person registered on its books as the owner of shares; and
(iii) shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another Person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
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Article
VIII
INDEMNIFICATION
8.1 Indemnification of Directors and Officers in Third Party Proceedings .
Subject to the other provisions of this Article VIII, the Corporation shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ Proceeding ”) (other than an action by or in the right of the Corporation) by reason of the fact that such Person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Person in connection with such Proceeding if such Person acted in good faith and in a manner such Person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such Person’s conduct was unlawful. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Person did not act in good faith and in a manner which such Person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such Person’s conduct was unlawful.
8.2 Indemnification of Directors and Officers in Actions by or in the Right of the Corporation .
Subject to the other provisions of this Article VIII, the Corporation shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such Person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such Person in connection with the defense or settlement of such action or suit if such Person acted in good faith and in a manner such Person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such Person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such Person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
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8.3 Successful Defense .
To the extent that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described in Section 8.1 or Section 8.2, or in defense of any claim, issue or matter therein, such Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Person in connection therewith.
8.4 Indemnification of Others .
Subject to the other provisions of this Article VIII, the Corporation shall have power to indemnify its employees and agents to the extent not prohibited by the DGCL or other applicable law. The Board of Directors shall have the power to delegate to such Person or Persons as the Board of Directors shall in its discretion determine the determination of whether employees or agents shall be indemnified.
8.5 Advance Payment of Expenses .
Expenses (including attorneys’ fees) actually and reasonably incurred by an officer or director of the Corporation in defending any Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding upon receipt of a written request therefor (together with documentation reasonably evidencing such expenses) and an undertaking by or on behalf of the Person to repay such amounts if it shall ultimately be determined that the Person is not entitled to be indemnified under this Article VIII or the DGCL. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents of the Corporation or by Persons serving at the request of the Corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate. The right to advancement of expenses shall not apply to any claim for which indemnity is excluded pursuant to these Bylaws, but shall apply to any Proceeding referenced in Section 8.6(ii) or 8.6(iii) prior to a determination that the Person is not entitled to be indemnified by the Corporation.
8.6 Limitation on Indemnification .
Subject to the requirements in Section 8.3 and the DGCL, the Corporation shall not be obligated to indemnify any Person pursuant to this Article VIII in connection with any Proceeding (or any part of any Proceeding):
(i) for which payment has actually been made to or on behalf of such Person under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid;
(ii) for an accounting or disgorgement of profits pursuant to Section 16(b) of the Exchange Act, or similar provisions of federal, state or local statutory law or common law, if such Person is held liable therefor (including pursuant to any settlement arrangements);
(iii) for any reimbursement of the Corporation by such Person of any bonus or other incentive-based or equity-based compensation or of any profits realized by such Person from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Sarbanes-Oxley Act, or the payment to the Corporation of profits arising from the purchase and sale by such Person of securities in violation of Section 306 of the Sarbanes-Oxley Act), if such Person is held liable therefor (including pursuant to any settlement arrangements);
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(iv) initiated by such Person, including any Proceeding (or any part of any Proceeding) initiated by such Person against the Corporation or its directors, officers, employees, agents or other indemnitees, unless (a) the Board of Directors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (b) the Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the Corporation under applicable law, (c) otherwise required to be made under Section 8.7 or (d) otherwise required by applicable law; or
(v) if prohibited by applicable law; provided , however , that if any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Article VIII (including, without limitation, each portion of any paragraph or clause containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (2) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion of any paragraph or clause containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
8.7 Determination; Claim .
If a claim for indemnification or advancement of expenses under this Article VIII is not paid in full within ninety (90) days after receipt by the Corporation of the written request therefor, the claimant shall be entitled to an adjudication by a court of competent jurisdiction of his or her entitlement to such indemnification or advancement of expenses. The Corporation shall indemnify such Person against any and all expenses that are incurred by such Person in connection with any action for indemnification or advancement of expenses from the Corporation under this Article VIII, to the extent such Person is successful in such action, and to the extent not prohibited by law. In any such suit, the Corporation shall, to the fullest extent not prohibited by law, have the burden of proving that the claimant is not entitled to the requested indemnification or advancement of expenses.
8.8 Non-Exclusivity of Rights .
The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation or any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such Person’s official capacity and as to action in another capacity while holding such office. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advancement of expenses, to the fullest extent not prohibited by the DGCL or other applicable law.
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8.9 Insurance .
The Corporation may purchase and maintain insurance on behalf of any Person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such Person and incurred by such Person in any such capacity, or arising out of such Person’s status as such, whether or not the Corporation would have the power to indemnify such Person against such liability under the provisions of the DGCL.
8.10 Survival .
The rights to indemnification and advancement of expenses conferred by this Article VIII shall continue as to a Person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a Person.
8.11 Effect of Repeal or Modification .
A right to indemnification or to advancement of expenses arising under a provision of the Certificate of Incorporation or a bylaw shall not be eliminated or impaired by an amendment to the Certificate of Incorporation or these Bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
8.12 Certain Definitions .
For purposes of this Article VIII, references to the “ Corporation ” shall include any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any Person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as such Person would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to “ other enterprises ” shall include employee benefit plans; references to “ fines ” shall include any excise taxes assessed on a Person with respect to an employee benefit plan; and references to “ serving at the request of the Corporation ” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a Person who acted in good faith and in a manner such Person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “ not opposed to the best interests of the Corporation ” as referred to in this Article VIII.
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8.13 Notices .
Any notice, request or other communications required or permitted to be given to the Corporation under this Article VIII shall be in writing and either delivered in person or sent by facsimile, telex, telegram, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the General Counsel or the Secretary of the Corporation and shall be effective only upon receipt by the General Counsel or the Secretary, as the case may be.
8.14 Reliance .
Each director of the Corporation shall, in the performance of such director’s duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by the Manager, or employees of the Manager, or any of the officers of the Corporation, or committees of the Board of Directors, or by any other Person as to matters the director reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
Article
IX
BOOKS AND RECORDS
9.1 Books and Records .
(i) The Corporation, other than as provided in the Management Services Agreement, shall keep or cause to be kept at its principal office appropriate books and records with respect to the Corporation’s business, including, without limitation, all books and records necessary to provide to the stockholders 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 Corporation in the regular course of its business, including, without limitation, the record of the stockholders, books of account and records of Corporation proceedings, may be kept in electronic or any other form, provided that the books and records so maintained are convertible into clearly legible written form within a reasonable period of time.
(ii) Any stockholder, 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 stock register, a list of the stockholders, and its other books and records; and (2) a Subsidiary of the Corporation’s books and records or copies thereof in electronic form, to the extent that (i) the Corporation has actual possession and control of such records of such Subsidiary, or (ii) the Corporation 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) stockholder inspection of such books and records of such Subsidiary would not constitute a breach of an agreement between the Corporation or such Subsidiary and a Person or Persons not affiliated with the Corporation, and (B) such Subsidiary would not have the right under the law applicable to it to deny the Corporation access to such books and records upon demand by the Corporation. 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 stockholder or beneficial holder of shares.
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Article
X
MISCELLANEOUS
10.1 Forum Selection Clause .
Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation; (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders; (c) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate of Incorporation or these Bylaws; (d) any action to interpret, apply, enforce or determine the validity of this Certificate of Incorporation or these Bylaws or (e) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Section 10.1.
10.2 Time .
In computing any period of time pursuant to these Bylaws, the day of the act, event or default from which the designated period of time begins to run shall not be included, but the time shall begin to run on the next succeeding day. The last day of the period so computed shall be included, unless it is a Saturday, Sunday or any other day on which banks in The City of New York are required or authorized by law or executive order to close, in which event the period shall run until the end of the next day which is not a Saturday, Sunday or any other day on which banks in The City of New York are required or authorized by law or executive order to close.
10.3 Severability .
If any provision of these Bylaws shall be held to be invalid, illegal, unenforceable or in conflict with the provisions of the Certificate of Incorporation, then such provision shall nonetheless be enforced to the maximum extent possible consistent with such holding and the remaining provisions of these Bylaws (including without limitation, all portions of any section of these Bylaws containing any such provision held to be invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation, that are not themselves invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation) shall remain in full force and effect.
10.4 Variation of Terms .
All terms and any variations thereof shall be deemed to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or Persons may require.
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10.5 Fiscal Year .
The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors and may be changed by the Board of Directors.
10.6 Seal .
The Corporation may adopt a corporate seal, which shall be adopted and which may be altered by the Board of Directors. The Corporation may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
Article
XI
AMENDMENTS
11.1 Amendments .
The Board of Directors is authorized to amend the terms of these Bylaws by resolution adopted by the affirmative vote of a majority of the Entire Board of Directors; provided, however , that Section 6.6 and this Section 11.1 hereof may not be amended without the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at a meeting of stockholders; provided further, however , that for so long as the Management Services Agreement is in effect, Section 3.7, Article VI, this Section 11.1 and Section 11.2 may not be amended without the prior written consent of the Manager.
11.2 Execution of Amendments by Officers .
The Board of Directors may authorize any of the officers of the Corporation to execute any amendment to these Bylaws that is adopted in accordance with Section 11.1 and this Section 11.2.
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Exhibit 4.1
THIRD AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
AMONG
MACQUARIE INFRASTRUCTURE CORPORATION,
MIC OHANA CORPORATION,
AND
MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC.
Dated as of May 21, 2015
TABLE OF CONTENTS
Page | ||
Article I DEFINITIONS | 1 | |
Article II APPOINTMENT OF THE MANAGER | 13 | |
Section 2.1 | Appointment | 13 |
Section 2.2 | Initial Investment | 13 |
Section 2.3 | Agreement to Bind Subsidiaries | 14 |
Section 2.4 | Term | 14 |
Section 2.5 | Company Special Stock | 14 |
Article III SERVICES TO BE PERFORMED BY THE MANAGER | 14 | |
Section 3.1 | Duties of the Manager | 14 |
Section 3.2 | Obligations of the Company and the Managed Subsidiaries | 18 |
Article IV POWERS OF THE MANAGER | 20 | |
Section 4.1 | Powers of the Manager | 20 |
Section 4.2 | Delegation | 20 |
Section 4.3 | Manager’s Duties Exclusive | 20 |
Article V INSPECTION OF RECORDS | 21 | |
Section 5.1 | Books and Records | 21 |
Article VI AUTHORITY OF THE COMPANY, THE MANAGED SUBSIDIARIES AND THE MANAGER | 21 | |
Article VII MANAGEMENT FEES | 21 | |
Section 7.1 | [INTENTIONALLY OMITTED] | 21 |
Section 7.2 | Base Management Fees | 21 |
Section 7.3 | Performance Fee | 23 |
Section 7.4 | Registration Rights | 25 |
Section 7.5 | Ability to Issue Shares of Company Common Stock | 25 |
Section 7.6 | Future Issuances of Company Preferred Stock | 25 |
Article VIII SECONDMENT OF PERSONNEL BY THE MANAGER | 25 | |
Section 8.1 | Secondment of CEO and CFO | 25 |
Section 8.2 | Remuneration of CEO and CFO | 25 |
Section 8.3 | Secondment of Additional Personnel | 26 |
Section 8.4 | Removal of Seconded Individuals | 26 |
Section 8.5 | Indemnification | 26 |
Article IX EXPENSE REIMBURSEMENT | 26 | |
Section 9.1 | Company Expenses | 26 |
Article X RESIGNATION AND REMOVAL OF THE MANAGER | 28 | |
Section 10.1 | Resignation by the Manager | 28 |
Section 10.2 | Removal of the Manager | 29 |
Section 10.3 | Withdrawal of Branding | 31 |
Section 10.4 | Resignation of the Chairman and the Seconded Officers | 31 |
Section 10.5 | Directions | 31 |
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Page | ||
Article XI INDEMNITY | 31 | |
Section 11.1 | Indemnification of Manager | 31 |
Section 11.2 | Indemnification of Company | 32 |
Section 11.3 | Indemnification | 32 |
Article XII LIMITATION OF LIABILITY OF THE MANAGER | 32 | |
Section 12.1 | Limitation of Liability | 32 |
Section 12.2 | Manager May Rely | 32 |
Article XIII LEGAL ACTIONS | 33 | |
Section 13.1 | Third Party Claims | 33 |
Article XIV MISCELLANEOUS | 33 | |
Section 14.1 | Obligation of Good Faith; No Fiduciary Duties | 33 |
Section 14.2 | Compliance | 33 |
Section 14.3 | Effect of Termination | 34 |
Section 14.4 | Notices | 34 |
Section 14.5 | Captions | 34 |
Section 14.6 | Applicable Law | 34 |
Section 14.7 | Amendment | 34 |
Section 14.8 | Severability | 34 |
Section 14.9 | Entire Agreement | 35 |
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THIRD AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT (this “ Agreement ”), dated as of May 21, 2015, among Macquarie Infrastructure Corporation (as successor-in-interest to Macquarie Infrastructure Company LLC), a Delaware corporation (the “ Company ”), MIC Ohana Corporation, a Delaware corporation (a “ Managed Subsidiary ” and, together with any directly owned Subsidiary of the Company as from time to time may exist and that has executed a counterpart of this Agreement in accordance with Section 2.3 herein, collectively, the “ Managed Subsidiaries ”), and Macquarie Infrastructure Management (USA) Inc., a Delaware corporation (the “ Manager ”). Individually, each party hereto shall be referred to as a “ Party ” and collectively as the “ Parties . ”
WHEREAS, the Company, the Managed Subsidiary and the Manager are parties to that certain Second Amended and Restated Management Services Agreement, dated as of September 30, 2013 (the “ Previous Agreement ”);
WHEREAS, the Company converted from a Delaware limited liability company (the “ Predecessor Company ”) to a Delaware corporation, effective as of May 21, 2015 (the “ Conversion ”) in accordance with the provisions of that certain Plan of Conversion, dated as of April 10, 2015 (the “Plan of Conversion”); and
WHEREAS, in connection with the Conversion, the Company, the Managed Subsidiaries and the Manager wish to amend and restate the Previous Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the Parties hereto agree as follows:
Article I
DEFINITIONS
“ Additional Shares ” means the aggregate number of shares of Company Common Stock issued in an Additional Offering (including any shares of Company Common Stock issued pursuant to the exercise of an over-allotment option).
“ Additional Offering ” means for any Fiscal Quarter in which a Performance Fee is being calculated any offering of shares of Company Common Stock in which the total number of shares of Company Common Stock issued in such offering equals or exceeds 15% of the total number of shares of Company Common Stock issued and outstanding immediately prior to such offering; provided that “Additional Offering” shall not include:
(i) any issuance of shares of Company Common Stock to the Manager pursuant to Article VII hereof;
(ii) the issuance of any shares of Company Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Company Common Stock under any such plan; or
(iii) the issuance of any shares of Company Common Stock or options or rights to purchase those shares of Company Common Stock pursuant to any present or future employee, director or consultant benefit plan or program of, or any such plan or program assumed by the Company or any of its subsidiaries.
“ Additional Offering Foreign Net Equity Value ” means the aggregate USD amount of the total proceeds from any Additional Offering which is to be applied to increase Foreign Net Equity Value.
“ Additional Offering Macquarie Infrastructure Corporation Accumulation Index ” means, with respect to the relevant Additional Shares, the Additional Offering Macquarie Infrastructure Corporation Accumulation Index or any predecessor index, including the Additional Offering Macquarie Infrastructure Company LLC Accumulation Index, calculated by Morgan Stanley Capital International Inc., in accordance with the methodology used to calculate the indices used in the calculation of clause (ii) of the Benchmark Return for the relevant Fiscal Quarter; provided that, in the event that the Macquarie Infrastructure Corporation Accumulation Index is not calculated by Morgan Stanley Capital International Inc., the Manager shall cause the institution then used to calculate the Macquarie Infrastructure Corporation Accumulation Index to calculate the Additional Offering Macquarie Infrastructure Corporation Accumulation Index in accordance with the methodology used to calculate the indices used in the calculation of clause (ii) of the Benchmark Return for the relevant Fiscal Quarter.
“ Additional Offering U.S. Net Equity Value ” means the aggregate USD amount of the total proceeds from any Additional Offering which is to be applied to increase U.S. Net Equity Value.
“ Additional Offering Weighted Average Percentage Change Of The MSCI Europe Utilities Index ” means the change in percentage terms for a relevant Fiscal Quarter calculated according to the following formula:
Z2 = N2 x (Q2 - P2) / P2
where
Z2 = the Additional Offering Weighted Average Percentage Change of the MSCI Europe Utilities Index;
N2 = the percentage determined by dividing (i) the Additional Offering Foreign Net Equity Value by (ii) the sum of the Additional Offering Foreign Net Equity Value and the Additional Offering U.S. Net Equity Value;
P2 = the average closing MSCI Europe Utilities Index over the last 15 Trading Days ending immediately prior to the first day of trading of the relevant Additional Interests; and
Q2 = the average closing MSCI Europe Utilities Index over the last 15 Trading Days of the current Fiscal Quarter, or over such lesser number of Trading Days from and including the first day of trading with respect to the Additional Shares through and including the Fiscal Quarter End Date of such Fiscal Quarter.
“ Additional Offering Weighted Average Percentage Change Of The MSCI U.S. IMI/Utilities Index ” means the change in percentage terms for a relevant Fiscal Quarter calculated according to the following formula:
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Y2 = J2 x (L2 - K2) / K2
where
Y2 = the Additional Offering Weighted Average Percentage Change Of The MSCI U.S. IMI/Utilities Index;
J2 = the percentage determined by dividing (i) the Additional Offering U.S. Net Equity Value by (ii) the sum of the Additional Offering Foreign Net Equity Value and the Additional Offering U.S. Net Equity Value;
K2 = the average closing MSCI U.S. IMI/Utilities Index over the last 15 Trading Days ending immediately prior to the first day of trading of the relevant Additional Interests; and
L2 = the average closing MSCI U.S. IMI/Utilities Index over the last 15 Trading Days of the current Fiscal Quarter, or over such lesser number of Trading Days from and including the first day of trading with respect to the Additional Shares through and including the Fiscal Quarter End Date of such Fiscal Quarter.
“ Affiliate ” means, with respect to any Person, (i) any Person directly or indirectly controlling, controlled by or under common control with such Person or (ii) any officer, director, general member, member or trustee of such Person. 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 50% of the directors, managers, general members, or Persons exercising similar authority with respect to such Person or entity.
“ Agreement ” or “ Management Services Agreement ” means this Third Amended and Restated Management Services Agreement, including all Exhibits and Schedules attached hereto, as amended and/or restated from time to time. Words such as “ herein ,” “ hereinafter ,” “ hereof ,” “ hereto ” and “ hereunder ” refer to this Agreement as a whole, unless the context otherwise requires.
“ AUD ” means the lawful currency of the Commonwealth of Australia.
“ Bankruptcy Law ” means title 11, United States Code or any similar federal or state law for the relief of debtors.
“ Base Fee VWAP ” has the meaning set forth in Section 7.2(e)(i).
“ Base Management Fee ” means in respect of a calendar month:
(i) where the Net Investment Value is less than or equal to USD500 million, 0.125% per calendar month of the Net Investment Value,
(ii) where the Net Investment Value is greater than USD500 million but less than or equal to USD1,500 million, USD0.625 million per calendar month plus 0.10417% per calendar month of such Net Investment Value exceeding USD500 million but not exceeding USD1,500 million, or
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(iii) where the Net Investment Value is greater than USD1,500 million, USD1.66667 million per calendar month plus 0.08333% per calendar month of such Net Investment Value exceeding USD1,500 million;
less
(x) the USD amount of any fees paid by the Company or any of its Subsidiaries during the calendar month to any individuals seconded to the Company pursuant to Article VIII, or to any officer, director, staff member or employee of the Manager or any Manager Affiliate, as compensation for serving as a director on the Board of Directors of the Company, any Subsidiary of the Company, or any company in which the Company or its Subsidiaries have invested, excluding amounts paid as reimbursement for expenses, in each case to the extent not subsequently paid to the Company or a Subsidiary of the Company;
(y) the amount of any management fees other than performance-based management fees payable to the Manager or a Manager Affiliate for that calendar month in relation to the management of a Macquarie Managed Investment Vehicle (calculated in USD using the applicable exchange rate on the last Business Day of such calendar month) multiplied by the Company’s percentage ownership in the Macquarie Managed Investment Vehicle on the last Business Day of the calendar month; provided that, to the extent that such management fee accrues over a period in excess of any calendar month, such management fee for any calendar month will be estimated by the Manager and will be adjusted to actual in the calendar month such fee becomes payable. For the avoidance of doubt such management fees do not include expense reimbursements or indemnities for Costs; and
(z) all Base Management Fees previously earned in any calendar month in relation to any Future Investment if it was determined conclusively during the relevant calendar month that such Future Investment would not be made.
“ Benchmark Return ” means the amount expressed in USD in respect of a Fiscal Quarter in accordance with the following formula:
BR = BR1 + BR2
where
BR = the Benchmark Return for the Fiscal Quarter;
and
(i) BR1 = X1 x (Y1 + Z1)
where
BR1 = the Benchmark Return for the Fiscal Quarter applicable to all shares of Company Common Stock, other than those included in the calculation of BR2;
X1 = has the same meaning as “A1” in the definition of Return;
Y1 = the Weighted Average Percentage Change of the MSCI U.S. IMI/Utilities Index over the Fiscal Quarter; and
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Z1 = the Weighted Average Percentage Change of the MSCI Europe Utilities Index over the Fiscal Quarter.
(ii) BR2 = X2 x (Y2 + Z2)
where
BR2 = the Benchmark Return for the Fiscal Quarter applicable solely to the Additional Shares issued in an Additional Offering during the relevant Fiscal Quarter;
X2 = has the same meaning as “A2” in the definition of Return;
Y2 = the Additional Offering Weighted Average Percentage Change of the MSCI U.S. IMI/Utilities Index over the period from and including the first day of trading with respect to any Additional Shares issued during the Fiscal Quarter for which a Performance Fee is being calculated, through and including the Fiscal Quarter End Date of such Fiscal Quarter; and
Z2 = the Additional Offering Weighted Average Percentage Change of the MSCI Europe Utilities Index over the period from and including the first day of trading with respect to any Additional Shares issued during the Fiscal Quarter for which a Performance Fee is being calculated, through and including the Fiscal Quarter End Date of such Fiscal Quarter.
“ Board ” or “ Board of Directors ” means, with respect to the Company, any Managed Subsidiary or any Subsidiary, as the case may be, the Board of Directors of the Company, such Managed Subsidiary or Subsidiary, or any committee of the Board of Directors that has been duly authorized by the Board of Directors to make a decision on the matter in question or bind the Company, such Managed Subsidiary or such Subsidiary, as the case may be, as to the matter in question.
“ Business ” means the business of owning and operating businesses and making investments in the United States and elsewhere, as may be conducted or made, directly and indirectly, by the Company from time to time.
“ Business Day ” means a day of the year on which banks are not required or authorized to close in The City of New York.
“ Bylaws ” means the Bylaws of Macquarie Infrastructure Corporation, effective May 21, 2015, as amended and/or restated from time to time.
“ Certificate ” means a certificate representing shares of Company Common Stock.
“ Certificate of Incorporation ” means the Certificate of Incorporation of Macquarie Infrastructure Corporation, effective May 21, 2015, as amended and/or restated from time to time.
“ Chairman ” means the Chairman of the Board of Directors of the Company.
“ Chief Executive Officer ” means the Chief Executive Officer of the Company, including any interim Chief Executive Officer.
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“ Chief Financial Officer ” means the Chief Financial Officer of the Company, including any interim Chief Financial Officer.
“ Commencement Date ” has the meaning set forth in Section 2.4.
“ Company ” has the meaning set forth in the first paragraph of this Agreement.
“ Company Common Stock ” means the common stock, $0.001 par value per share, of the Company.
“ Company Officers ” means the Chief Executive Officer and the Chief Financial Officer and any other officer of the Company hereinafter appointed by the Board of Directors of the Company.
“ Company Preferred Stock ” means the preferred stock of the Company, which may be issued in one or more series in accordance with the Certificate of Incorporation.
“ Company Special Stock ” means the special stock, par value $0.001 per share of the Company.
“ Compensation Committee ” means the Compensation Committee of the Board of Directors of the Company.
“ Contracted Assets ” means businesses that derive a majority of their revenues from long-term contracts with other businesses or governments.
“ Conversion ” has the meaning set forth in the Preamble.
“ Costs ” includes costs, charges, fees, expenses, commissions, liabilities, losses, damages and Taxes and all amounts payable in respect of them or like amounts.
“ Custodian ” means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
“ Deficit ” means the aggregate amounts in USD in respect of each Fiscal Quarter since a Performance Fee last became due and payable, not including the Fiscal Quarter in respect of which a calculation is being made, by which the Benchmark Return for each such Fiscal Quarter exceeds the Return for that Fiscal Quarter (if any).
“ Delisting Event ” means a transaction or series of related transactions involving the acquisition of shares of Company Common Stock by third parties in an amount that results in the shares of Company Common Stock ceasing to be listed on a recognized U.S. national securities exchange because the shares of Company Common Stock ceased to meet the distribution and trading criteria of such exchange or market.
“ Earnings Release Day ” means any Business Day that the Company releases to the public quarterly or annual historical consolidated financial information.
“ Election Period ” has the meaning set forth in Section 7.2(e)(ii).
“ Exchange ” means the exchange of all issued and outstanding shares of Trust Stock for LLC Interests in connection with the dissolution of the Trust.
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“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Fiscal Quarter ” means (i) the period commencing on the Commencement Date and ending on December 31, 2004, and (ii) any subsequent three-month period commencing on each of October 1, January 1, April 1 and July 1 and ending on the last day before the next such date.
“ Fiscal Quarter End Date ” means the last day of a Fiscal Quarter.
“ Fiscal Year ” means (i) the period commencing on the Commencement Date and ending on December 31, 2004 and (ii) any subsequent 12-month period commencing on January 1 and ending on December 31.
“ Foreign Net Equity Value ” means the Net Equity Value for the portion of the Business held outside of the United States (measured in USD based on the then-applicable exchange rate) as determined by the Manager and approved by the Compensation Committee of the Company (which approval shall not be unreasonably withheld, delayed or conditioned).
“ Full Base Fee Cash Amount ” has the meaning set forth in Section 7.2(e)(iii)(A).
“ Full Performance Fee Cash Amount ” has the meaning set forth in Section 7.3(e)(iii)(A).
“ Future Investment ” means a contractual commitment to invest represented by a definitive agreement.
“ GAAP ” means generally accepted accounting principles in effect in the United States of America from time to time.
“ Independent Director ” means a director who (a) (i) is not an officer or employee of the Company, or an officer, director or employee of any of the Managed Subsidiaries or any Subsidiary, (ii) was not elected as a director by the holders of the Company Special Stock voting separately as a class and (iii) is not affiliated with the Manager or any Manager Affiliate; and (b) complies with the independence requirements under the Exchange Act and the NYSE Rules.
“ Initial Investment ” has the meaning set forth in Section 2.2.
“ Initial Level of the Additional Offering Macquarie Infrastructure Corporation Accumulation Index ” means the initial value designated at the time of the establishment of the relevant Additional Offering Macquarie Infrastructure Corporation Accumulation Index, which shall be based on the offering price of the Additional Shares issued in the relevant Additional Offering.
“ Liabilities ” has the meaning set forth in Section 11.1.
“ LLC Agreement ” means the Third Amended and Restated Operating Agreement of Macquarie Infrastructure Company LLC dated as of June 22, 2007.
“ LLC Interest ” means a limited liability company interest in the Predecessor Company in accordance with the LLC Agreement.
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“ LLC Interest Certificate ” means a certificate representing LLC Interests.
“ Manager Affiliate ” means any Affiliate of the Manager other than the Company, any Subsidiary of the Company or any Person who would be deemed a Manager Affiliate solely as a result of such Person’s association with the Company or any Subsidiary of the Company.
“ Macquarie Infrastructure Corporation Accumulation Index ” means the Macquarie Infrastructure Corporation Accumulation Index or any predecessor index, including the Macquarie Infrastructure Company LLC Accumulation Index, as calculated by Morgan Stanley Capital International Inc., in accordance with the methodology used to calculate the MSCI U.S. IMI/Utilities Index and the MSCI Europe Utilities Index from time to time. In the event that the indices used in the calculation of the Benchmark Return are not calculated by Morgan Stanley Capital International Inc., the Manager may select another institution of comparable recognized standing that is not a Manager Affiliate to calculate the Macquarie Infrastructure Corporation Accumulation Index in a manner consistent with the methodology used to calculate the MSCI U.S. IMI/Utilities Index and the MSCI Europe Utilities Index.
“ Macquarie Managed Investment Vehicle ” means an entity which is managed by the Manager or a Manager Affiliate where such Person receives remuneration, other than expense reimbursement or indemnity for Costs, for managing the entity.
“ Managed Subsidiary ” and “ Managed Subsidiaries ” have the meanings set forth in the first paragraph of this Agreement.
“ Manager ” has the meaning set forth in the first paragraph of this Agreement.
“ Market Value of the Shares of Company Common Stock ” means the product of (1) the average number of shares of Company Common Stock issued and outstanding, other than those held in treasury, during that period commencing on and including the first Trading Day in the relevant calendar month and ending on and including the last Trading Day in the relevant calendar month, multiplied by (2) the volume weighted average trading price per share of Company Common Stock traded on the NYSE over that period commencing on and including the first Trading Day in the relevant calendar month and ending on and including the last Trading Day in the relevant calendar month.
“ MIRA ” has the meaning set forth in Section 3.1(b)(iii).
“ MSCI Europe Utilities Index ” means the total return equity index with that name calculated in USD and published by Morgan Stanley Capital International Inc. or, if that index ceases to be calculated or ceases to be publicly available, the nearest equivalent available index selected by the Manager and reasonably acceptable to the Compensation Committee of the Company that is (a) calculated by an institution of comparable recognized standing that is not a Manager Affiliate and (b) publicly available.
“ MSCI U.S. IMI/Utilities Index ” means the total return equity index with that name calculated in USD and published by Morgan Stanley Capital International Inc. or, if that index ceases to be calculated or ceases to be publicly available, the nearest equivalent available index selected by the Manager and reasonably acceptable to the Compensation Committee of the Company that is (a) calculated by an institution of comparable recognized standing that is not a Manager Affiliate and (b) publicly available.
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“ Net Equity Value ” means the fair value of the equity of the Business (as measured in USD, based on the then-applicable exchange rates, if applicable) as determined by the Manager and approved by the Compensation Committee of the Company (which approval shall not be unreasonably withheld, delayed or conditioned).
“ Net Investment Value ” means:
(a) the Market Value of the shares of Company Common Stock; plus
(b) the amount of any borrowings (other than intercompany borrowings) of the Company 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 Company and/or any of its Subsidiaries other than cash or cash equivalents, as calculated by the Manager and approved by the Compensation Committee of the Company (which approval shall not be unreasonably withheld, delayed or conditioned); provided that such Future Investment has not been outstanding for more than two consecutive Fiscal Quarters; less
(d) the aggregate amount held by the Company 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).
“ New Investment Vehicle ” has the meaning set forth in Section 3.1(b)(iii).
“ NYSE ” means the New York Stock Exchange, Inc.
“ NYSE Rules ” means the rules of the New York Stock Exchange.
“ Partial Base Fee Cash Amount ” has the meaning set forth in Section 7.2(e)(iii)(B).
“ Partial Performance Fee Cash Amount ” has the meaning set forth in Section 7.3(e)(iii)(B).
“ Performance Fee ” for a Fiscal Quarter means, if the Return for such Fiscal Quarter is greater than zero, 20% of the amount (if any) by which the Return for such Fiscal Quarter together with any Surplus exceeds the Benchmark Return for such Fiscal Quarter together with any Deficit.
“ Performance Fee VWAP ” has the meaning set forth in Section 7.3(e)(i).
“ Performance Test Return ” means the amount expressed in percentage terms in accordance with the following formula:
(C1 — B1) / B1
where
B1 and C1 are as defined in the definition of Return.
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“ Performance Test Benchmark Return ” means the amount expressed in percentage terms in accordance with the following formula:
Y1 + Z1
where
Y1 and Z1 are as defined in the definition of Benchmark Return.
“ Person ” means any individual, company (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity.
“ Plan of Conversion ” has the meaning set forth in the Preamble.
“ Previous Agreement ” has the meaning set forth in the Preamble.
“ Predecessor Company ” has the meaning set forth in the Preamble.
“ Regulated Assets ” means businesses that are the sole or predominant providers of at least one essential service in their service areas and where the level of revenue earned or charges imposed are regulated by government entities.
“ Return ” means the amount expressed in USD in respect of a Fiscal Quarter in accordance with the following formula:
R = R1 + R2
where
R = the Return for the Fiscal Quarter
and
R1 = A1 x (C1 — B1) / B1
where
R1 = the Return for the Fiscal Quarter applicable to all shares of Company Common Stock, other than those included in the calculation of R2;
A1 = the average number of shares of Company Common Stock issued and outstanding, other than those held in treasury, during the last 15 Trading Days in the previous Fiscal Quarter multiplied by the volume weighted average trading price per share of Company Common Stock traded on the NYSE during such 15 Trading Days;
B1 = the average of the daily closing Macquarie Infrastructure Corporation Accumulation Index over the last 15 Trading Days of the previous Fiscal Quarter; and
C1 = the average of the daily closing Macquarie Infrastructure Corporation Accumulation Index over the last 15 Trading Days of the current Fiscal Quarter.
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(ii) R2 = A2 x (C2 — B2) / B2
where
R2 = the Return for the Fiscal Quarter applicable solely to the Additional Shares issued during such Fiscal Quarter;
A2 = the number of such Additional Shares times the per share offer price for those Additional Shares;
B2 = the Initial Level of the Additional Offering Macquarie Infrastructure Corporation Accumulation Index applicable to such Additional Shares; and
C2 = the average of the daily closing Additional Offering Macquarie Infrastructure Corporation Accumulation Index applicable to such Additional Shares over the last 15 Trading Days of the current Fiscal Quarter, or over such lesser number of Trading Days from and including the first day of trading with respect to the Additional Shares through and including the Fiscal Quarter End Date of such Fiscal Quarter.
“ Rules and Regulations ” means the rules and regulations promulgated under the Exchange Act or the Securities Act.
“ Securities Act ” means the Securities Act of 1933, as amended.
“ Services ” has the meaning set forth in Section 3.1(b).
“ Stockholders ” means all Persons that at any time hold shares of Company Common Stock.
“ Subsidiary ” means, with respect to any Person, any corporation, company, joint venture, limited liability company, association or other entity in which such Person owns, directly or indirectly, more than 50% of the outstanding equity securities or interests, the holders of which are or would be generally entitled to vote for the election of the Board of Directors or other governing body of such entity.
“ Surplus ” means the aggregate amounts in USD in respect of each Fiscal Quarter since a Performance Fee has become due and payable, not including the Fiscal Quarter in respect of which a calculation is being made, by which the Return for each such Fiscal Quarter exceeds the Benchmark Return for that Fiscal Quarter.
“ Tax ” or “ Taxes ” means any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any government or taxing authority, including taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes; license, registration and documentation fees; and customs’ duties, tariffs, and similar charges.
“ Termination Date ” means the date on which this Agreement and the obligations of the Manager hereunder terminate.
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“ Termination Fee ” means the amount calculated as follows:
the sum of (i) all accrued and unpaid Base Management Fees and Performance Fees for the period from the previous Fiscal Quarter End Date to the Delisting Event, using the volume weighted average price per share of Company Common Stock paid by an acquiror in the transaction or series of transactions that led to the Delisting Event to calculate such fees, plus (ii)(a) if the price per share of Company Common Stock stated in (i) above multiplied by the aggregate number of shares of Company Common Stock issued and outstanding, other than those held in treasury, on the date of the Delisting Event, is less than or equal to $500 million, 10% of such value, or (b) if the price per share of Company Common Stock stated in (i) above multiplied by the aggregate number of shares of Company Common Stock issued and outstanding, other than those held in treasury, on the date of the Delisting Event is greater than $500 million, $50 million plus 1.5% of the value in excess of $500 million.
“ The Macquarie Group ” means the Macquarie Group of companies, which comprises Macquarie Bank Limited, or its ultimate parent company, and their respective subsidiaries and affiliates worldwide.
“ Threshold Price ” has the meaning set forth in Section 7.2(e)(iii).
“ Trading Day ” means a day during which trading in securities generally occurs on the NYSE or, if the shares of Company Common Stock are not listed on the NYSE, on the principal other national or regional securities exchange or interdealer quotation system on which the shares of Company Common Stock are then listed or quoted.
“ Trust ” means Macquarie Infrastructure Company Trust, which prior to its dissolution, held one hundred percent (100%) of the ownership interest in the Company.
“ Trust Stock ” means the shares of beneficial interest of the Trust.
“ USD ” means the lawful currency of the United States of America.
“ User Pays Assets ” means businesses that are transportation-related and derive a majority of their revenues from a per use fee or charge.
“ US Net Equity Value ” means the Net Equity Value for the portion of the Business held inside the United States as determined by the Manager and approved by the Compensation Committee of the Company (which approval shall not be unreasonably withheld, delayed or conditioned).
“ Weighted Average Percentage Change Of The MSCI Europe Utilities Index ” means the change in percentage terms for a period calculated according to the following formula:
Z1 = N1 x (Q1 — P1) / P1
where
Z1 = the Weighted Average Percentage Change Of The MSCI Europe Utilities Index;
N1 = the percentage of Net Equity Value attributable to the Foreign Net Equity Value on the last Business Day of the previous Fiscal Quarter;
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P1 = the average closing MSCI Europe Utilities Index over the last 15 Trading Days of the previous Fiscal Quarter; and
Q1 = the average closing MSCI Europe Utilities Index over the last 15 Trading Days of the current Fiscal Quarter.
“ Weighted Average Percentage Change Of The MSCI U.S. IMI/Utilities Index ” means the change in percentage terms for a Fiscal Quarter calculated according to the following formula:
Y1 = J1 x (L1 — K1) / K1
where
Y1 = the Weighted Average Percentage Change of the MSCI U.S. IMI/Utilities Index;
J1 = the percentage of Net Equity Value attributable to the U.S. Net Equity Value on the last Business Day of the previous Fiscal Quarter;
K1 = the average closing MSCI U.S. IMI/Utilities Index over the last 15 Trading Days of the previous Fiscal Quarter; and
L1 = the average closing MSCI U.S. IMI/Utilities Index over the last 15 Trading Days of the current Fiscal Quarter.
Article II
APPOINTMENT OF THE MANAGER
Section 2.1 Appointment . The Company and each of the Managed Subsidiaries hereby jointly and severally agree to appoint the Manager to manage their business and affairs under the supervision and control of the Board of Directors of the Company and such Managed Subsidiary and to perform the Services in accordance with the terms of this Agreement.
Section 2.2 Initial Investment . The Manager acquired from the Company the number of shares of Trust Stock having an aggregate purchase price of $50 million, concurrently with the initial public offering of the Trust Stock (including the LLC Interests issued upon the Exchange, the “ Initial Investment ”) and at a per share purchase price equal to the per share initial public offering price. 30% of the Initial Investment may be disposed of at any time. 70% of the Initial Investment had to be held for a period of not less than 12 months from the Commencement Date, which period has concluded. At any time from and after the first anniversary of the Commencement Date, the Manager may dispose of a further 35% of the Initial Investment and may dispose of the balance of the Initial Investment at any time from and after the third anniversary of the Commencement Date, which period has concluded.
Section 2.3 Agreement to Bind Subsidiaries . The Company covenants and agrees to cause any Managed Subsidiary created or acquired after the date of this Agreement to execute a counterpart of this Agreement agreeing to be bound by the terms hereunder.
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Section 2.4 Term . The Manager shall provide Services to the Company and its Managed Subsidiaries from the date of the closing of the initial public offering by the Trust and the Company (the “ Commencement Date ”) until the termination of this Agreement in accordance with Article X.
Section 2.5 Company Special Stock . In order to give effect to the special voting rights of the Manager under the previous agreement to appoint one director of the Predecessor Company and to induce the Manager to enter into this Agreement in connection with the Conversion, the Company shall issue to the Manager simultaneously herewith 100 shares of Company Special Stock having the terms provided in the Certificate of Incorporation.
Article III
SERVICES TO BE PERFORMED BY THE MANAGER
Section 3.1 Duties of the Manager . (a) Subject always to the oversight and supervision of the Board of Directors of the Company, the Manager will manage the Company’s and the Managed Subsidiaries’ business and affairs. In the performance of its duties, the Manager will comply with the provisions of the Certificate of Incorporation and the Bylaws, as amended from time to time, and the operating objectives, policies and restrictions of the Company in existence from time to time. The Company will promptly provide the Manager with all amendments to the Certificate of Incorporation and the Bylaws and all stated operating objectives, policies and restrictions of the Company approved by the Board of Directors of the Company and any other available information requested by the Manager.
(b) The Manager further agrees and covenants that it will perform the following, referred to herein as the “ Services: ”
(i) cause the carrying out of all day-to-day management, secretarial, accounting, administrative, liaison, representative, regulatory and reporting functions and obligations of the Company and the Managed Subsidiaries;
(ii) establish and maintain books and records for the Company and the Managed Subsidiaries consistent with industry standards and in compliance with the Rules and Regulations and with GAAP;
(iii) identify, evaluate and recommend, through the Company Officers, acquisitions or investment opportunities from time to time; if the Board of Directors of the Company approves any acquisition or investment, negotiate and manage such acquisitions or investments on behalf of the Company; and thereafter manage those acquisitions or investments, as a part of the Company’s Business hereunder, on behalf of the Company and any relevant Managed Subsidiary in accordance with this Section 3.1. To the extent acquisition or investment opportunities covered by the priority protocol set forth in Schedule I to this Agreement are offered to the Manager or to entities that are managed by subsidiaries within the Macquarie Infrastructure and Real Assets Division (or any successor thereto) of the Macquarie Group ( “ MIRA ”), the Manager will offer any such acquisition or investment opportunities to the Company in accordance with such priority protocol unless the Chief Executive Officer notifies the Manager in writing that the acquisition or investment opportunity does not meet the Company’s acquisition criteria, as determined by the Board of Directors from time to time. The Company acknowledges and agrees that (i) no Manager Affiliate has any obligation to offer any acquisition or investment opportunities covered by the priority protocol set forth in Schedule I to this Agreement to the Manager or to MIRA; (ii) any Manager Affiliate is permitted to establish further investment vehicles that will seek to invest in infrastructure businesses in the United States (a “ New Investment Vehicle ”); provided that the then-existing rights of the Company and the Managed Subsidiaries pursuant to this Agreement are preserved; and (iii) in the event that an acquisition or investment opportunity is offered to the Company by the Manager and the Company determines that it does not wish to pursue the acquisition or investment opportunity in full, any portion of the opportunity which the Company does not wish to pursue may be offered to any other Person, including a New Investment Vehicle or any other Macquarie Managed Investment Vehicle, in the sole discretion of the Manager or any Manager Affiliate;
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(iv) attend to all matters necessary to ensure the professional management of any Business controlled by the Company;
(v) identify, evaluate and recommend the sale of all or any part of the Business owned by the Company from time to time in accordance with the Company’s criteria and policies then in effect and, if such proposed sale is approved by the Boards of Directors of the Company and any relevant Managed Subsidiary, negotiate and manage the execution of the sale on behalf of the Company and such relevant Managed Subsidiary;
(vi) recommend and, if approved by the Board of Directors of the Company, use its reasonable efforts to procure the raising of funds whether by way of debt, equity or otherwise, including the preparation, review, distribution and promotion of any prospectus or offering memorandum in respect thereof, but without any obligation to provide such funds;
(vii) recommend to the Board of Directors of the Company amendments and modifications to the Certificate of Incorporation and the Bylaws and this Agreement;
(viii) recommend to the Board of Directors of the Company capital reductions including repurchases of shares of Company Common Stock;
(ix) recommend to the Board of Directors of the Company and, as applicable, the Board of Directors of the Managed Subsidiaries the appointment, hiring and dismissal (including all material terms related thereto) of officers, staff and consultants to the Company, the Managed Subsidiaries and any of their Subsidiaries, as the case may be;
(x) cause the carrying out of maintenance to, or development of, any part of the Business or any asset of the Company or any Managed Subsidiary approved by the Board of Directors of the Company;
(xi) when appropriate, recommend to the Board of Directors of the Company nominees of the Company as directors of the Managed Subsidiaries and any of their Subsidiaries or companies in which the Company, the Managed Subsidiaries or any of their Subsidiaries has made an investment;
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(xii) recommend to the Board of Directors of the Company the payment of dividends and interim dividends to its Stockholders;
(xiii) prepare all necessary budgets for submission to the Board of Directors of the Company for approval;
(xiv) make recommendations to the Board of Directors of the Company and the Managed Subsidiaries for the appointment of auditors, accountants, legal counsel and other accounting, financial or legal advisers and technical, commercial, marketing or other independent experts;
(xv) make recommendations with respect to the exercise of the voting rights to which the Company or any of the Managed Subsidiaries is entitled in respect of its investments;
(xvi) recommend and, subject to approval of the Company’s Board of Directors, provide or procure all necessary technical, business management and other resources for Subsidiaries of the Company, including the Managed Subsidiaries, and any other entities in which the Company has made an investment;
(xvii) do all things necessary on its part to enable compliance by the Company and each Managed Subsidiary, as applicable, with:
(A) the requirements of applicable law, including the Rules and Regulations or the rules, regulations or procedures of any foreign, federal, state or local governmental, judicial, regulatory or administrative authority, agency or commission; and
(B) any contractual obligations by which the Company or any Managed Subsidiary is bound;
(xviii) prepare and, subject to the approval of the Company’s Board of Directors (which approval shall not be unreasonably withheld, delayed or conditioned), arrange to be filed on behalf of the Company with the Securities and Exchange Commission, any other applicable regulatory body, the NYSE or any other applicable stock exchange or automated quotation system, in a timely manner, all annual, quarterly, current and other reports the Company is required to file with the Securities and Exchange Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(xix) attend to all matters necessary for any reorganization, bankruptcy proceedings, dissolution or winding up of the Company or any Managed Subsidiary, subject to approval by the relevant Board of Directors of the Company or any such Managed Subsidiary;
(xx) attend to the timely calculation and payment of Taxes payable, and the filing of all Tax returns due, by the Company and each of its Subsidiaries;
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(xxi) attend to the opening, closing, operation and management of all the Company and Managed Subsidiary bank accounts and the Company and Managed Subsidiary accounts held with other financial institutions, including making any deposits and withdrawals reasonably necessary for the management of the Company’s and the Managed Subsidiaries’ day-to-day operations;
(xxii) cause the consolidated financial statements of the Company and its Subsidiaries for each Fiscal Year to be prepared and quarterly interim financial statements to be prepared in accordance with applicable accounting principles for review and audit at least to such extent and with such frequency as may be required by law or regulation;
(xxiii) recommend the arrangements for the holding and safe custody of the Company’s property including the appointment of custodians or nominees;
(xxiv) manage litigation in which the Company or any Managed Subsidiary is sued or commence litigation after consulting with, and subject to the approval of, the Board of Directors of the Company or such Managed Subsidiary;
(xxv) carry out valuations of any of the assets of the Company or any of its Subsidiaries or arrange for such valuation to occur as and when the Manager deems necessary or desirable in connection with the performance of its obligations hereunder, or as otherwise approved by the Board of Directors of the Company;
(xxvi) make recommendations in relation to and effect the entry into insurance of the assets of the Company, the Managed Subsidiaries and their Subsidiaries, together with other insurances against other risks, including directors and officers insurance, as the Manager and the Board of Directors of the Company or any Managed Subsidiary, as applicable, may from time to time agree; and
(xxvii) provide all such other services as may from time to time be agreed with the Company, including any and all accounting and investor relations services (such as the preparation and organization of communications with Stockholders and Stockholder meetings) and all other duties reasonably related to the day-to-day operations of the Company and the Managed Subsidiaries.
(c) In addition, the Manager must:
(i) obtain professional indemnity insurance and fraud and other insurance and maintain such coverage as is reasonable having regard to the nature and extent of the Manager’s obligations under this Agreement;
(ii) exercise all due care, loyalty, skill and diligence in carrying out its duties under this Agreement as required by applicable law;
(iii) provide the Board of Directors of the Company and/or the Compensation Committee with all information in relation to the performance of the Manager’s obligations under this Agreement as the Board of Directors and/or the Compensation Committee may reasonably request;
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(iv) promptly deposit all amounts payable to the Company or the Managed Subsidiaries, as the case may be, to a bank account held in the name of the Company or the Managed Subsidiaries, as applicable;
(v) ensure that all property of the Company and the Managed Subsidiaries is clearly identified as such, held separately from property of the Manager and, where applicable, in safe custody;
(vi) ensure that all property of the Company and the Managed Subsidiaries (other than money to be deposited to any bank account of the Company or the Managed Subsidiaries, as the case may be) is transferred to or otherwise held in the name of the Company or the Managed Subsidiaries, as the case may be, or any nominee or custodian appointed by the Company or the Managed Subsidiaries, as the case may be;
(vii) prepare detailed papers and agendas for scheduled meetings of the Boards of Directors (and all committees thereof) of the Company and the Managed Subsidiaries that, where applicable, contain such information as is reasonably available to the Manager to enable the Boards of Directors (and any such committees) to base their opinion; and
(viii) in conjunction with the papers referred to in paragraph (vii) above, prepare or cause to be prepared reports to be considered by the Boards of Directors of the Company or the Managed Subsidiaries (or any applicable committee thereof) in accordance with the Company’s internal policies and procedures (1) on any acquisition, investment or sale of any part of the Business proposed for consideration by any such Board of Directors (or any applicable committee thereof), (2) on the management of the Business and (3) otherwise in respect of the performance of the Manager’s obligations under this Agreement, in each case that the Company may require and in such form that the Company and the Manager agree or as otherwise reasonably requested by any such Board of Directors (or any applicable committee thereof).
(d) In connection with the performance of its obligations under this Agreement, the Manager shall obtain approval of the Company’s and any relevant Managed Subsidiary’s Board of Directors, in each case in accordance with the Company’s internal policy regarding action requiring Board approval or as otherwise determined by any such Board of Directors (or any applicable committee thereof) or the Company Officers.
Section 3.2 Obligations of the Company and the Managed Subsidiaries . (a) The Company and the Managed Subsidiaries will do all things reasonably necessary on their part as requested by the Manager consistent with the terms of this Agreement to enable the Company, the Managed Subsidiaries and the Manager, as the case may be, to fulfill their obligations under this Agreement.
(b) The Company and the Managed Subsidiaries must ensure that:
(i) each of their officers and employees, each of their Subsidiaries and each of their Subsidiaries’ officers and employees act in accordance with the terms of this Agreement and the reasonable directions of the Manager in fulfilling its obligations and exercising its powers under this Agreement; and
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(ii) the Company, the Managed Subsidiaries and each of their Subsidiaries provide to the Manager all reports (including monthly management reports and all other relevant reports) which the Manager may reasonably require and on such dates as the Manager may reasonably require.
(c) During the term of this Agreement, the Company must not (i) issue shares of Company Common Stock or Company Preferred Stock, (ii) amend the Certificate of Incorporation or the Bylaws, (iii) make a decision to or effect a purchase or sale of any assets of the Company or any Managed Subsidiary, or (iv) effect any capital reduction, including a repurchase of shares of Company Common Stock or Company Preferred Stock, in each case without requesting and considering a recommendation from the Manager in relation to the same. Notwithstanding the foregoing, without the prior written consent of the Manager, the Company will not (x) make a decision to acquire or purchase, or effect the acquisition or purchase of, any assets or businesses unless in the reasonable opinion of the Board of Directors of the Company the acquisition or purchase could not be expected to negatively affect the ability of the Company to maintain its dividend per share of Company Common Stock in accordance with the then existing dividend policy of the Company, or (y) amend any provision of the Certificate of Incorporation or the Bylaws that affects the rights of the Manager thereunder or hereunder.
(d) The Company agrees that it will, and will cause each of its wholly owned Subsidiaries to, give Manager Affiliates preferred provider status in respect of any financial advisory services to be contracted for by the Company or any of its wholly owned Subsidiaries, including, but not limited to, asset acquisitions, refinancings, advice on mergers and acquisitions, debt and equity raising, hedging activities and the like. Such services will be contracted for on an arm’s-length basis on market terms and will be subject to approval by the Independent Directors (or a committee thereof, comprised of at least three independent directors) in accordance with the Company’s internal policies related to conflicts of interest and related party transactions. The Independent Directors (or a committee thereof, comprised of at least three independent directors) may take whatever measures they deem prudent to confirm the arm’s length basis of any fees to be paid to any Manager Affiliate. Any fees payable to any Manager Affiliate in respect of such financial advisory services will be in addition to all amounts owing under Article VII.
( e) The Company agrees that, in connection with the performance of its obligations hereunder, the Manager may recommend to the Company, and on behalf of the Company may engage, in transactions with Manager Affiliates, provided that any such transactions will be subject to the Company’s internal policies regarding conflicts of interest and related party transactions.
(f) The Company will ensure that it maintains at least three Independent Directors.
(g) The Company will take any and all actions necessary to ensure that it does not become an “investment company” as defined in Section 3 (a)(1) of the Investment Company Act of 1940, as amended, as such Section may be amended from time to time, or any successor provision thereto.
(h ) The Company shall grant rights to indemnification, and rights to be paid by the Company the expenses incurred in defending any proceeding in advance of its final disposition, to each person seconded to the Company by the Manager, in their respective capacities at the Company, in each case to the fullest extent of the provisions of the Certificate of Incorporation and the Bylaws with respect to the indemnification and advancement of expenses of directors and officers of the Company, and shall maintain adequate directors and officers insurance customary for publicly traded companies with comparable market capitalization, at its expense.
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Article IV
POWERS OF THE MANAGER
Section 4.1 Powers of the Manager . (a) The Manager shall have no power to enter into any contract or subject the Company or the Managed Subsidiaries to any obligation, such power to be the sole right and obligation of the Company, acting through its Board of Directors and/or Company Officers, or of the applicable Managed Subsidiary, acting through its Board of Directors and/or officers.
(b) In accordance with the terms of the Certificate of Incorporation, for so long as the Manager or any Manager Affiliate holds at least 200,000 shares of Company Common Stock (as adjusted to reflect any subsequent equity splits or similar recapitalizations), the holders of the Company Special Stock voting as a separate class shall have the right to elect one director of the Company’s Board of Directors, and such director shall serve as the Chairman. During such period, the Company will nominate an individual designated by the Manager to be elected as a director of the Company by the holders of the Company Special Stock voting separately as a class.
(c) The Manager shall have the power to engage any agents (including real estate agents and managing agents), valuers, contractors and advisers (including accounting, financial, tax and legal advisers) that it deems necessary or desirable in connection with the performance of its obligations hereunder, which costs therefor will be subject to reimbursement under Section 9.1(k), subject to applicable law.
Section 4.2 Delegation . The Manager may delegate or appoint (a) any Manager Affiliate as an agent, at its expense, in respect of all or any of its duties and powers to manage the Business and affairs of the Company or (b) any other Person as agent, at its expense, in respect of any of its duties and powers to manage the Business and affairs of the Company which, in its sole discretion, are not critical to the ability of the Manager to perform its obligations hereunder; provided, however, that in either case the Manager shall not be relieved of any of its responsibilities or obligations to the Company as a result of such delegation. The Manager shall be permitted to share Company information with its appointed agents subject to appropriate confidentiality arrangements.
Section 4.3 Manager’s Duties Exclusive . The Company and the Managed Subsidiaries agree that during the term of this Agreement the duties and obligations imposed on the Manager under Article III are to be performed exclusively by the Manager or its delegates or agents and the Company and the Managed Subsidiaries will not, through the exercise of the powers of their employees, Boards of Directors or their shareholders or members, as the case may be, perform the duties and obligations to be performed by the Manager except in circumstances where it is necessary to do so to comply with applicable law or as otherwise agreed by the Manager in writing.
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Article V
INSPECTION OF RECORDS
Section 5.1 Books and Records . At all reasonable times and on reasonable notice, any person authorized by the Company or by any of the Managed Subsidiaries may inspect and audit the records and books of the Manager kept pursuant to this Agreement.
Article VI
AUTHORITY
OF THE COMPANY,
THE MANAGED SUBSIDIARIES AND THE MANAGER
Each Party represents to the others that it is duly authorized with full power and authority to execute, deliver and perform this Agreement. The Company and each Managed Subsidiary represents that the engagement of the Manager has been duly authorized by the Company and each Managed Subsidiary and is in accordance with all governing documents of the Company and each Managed Subsidiary.
Article VII
MANAGEMENT FEES
For the services provided and the expenses assumed pursuant to this Agreement, the Company and the Managed Subsidiaries will pay the Manager, and the Manager agrees to accept as full compensation therefor, the fees set forth in this Article VII.
Section 7.1 [INTENTIONALLY OMITTED]
Section 7.2 Base Management Fees . (a) The Manager is entitled to receive a Base Management Fee in respect of each calendar month.
(b) The Base Management Fee for a calendar month is to be calculated by the Manager as of the last day of the relevant calendar month and notice of such Base Management Fee calculation shall be provided by the Manager to the Company and the Compensation Committee within five Business Days after such day.
(c) The Base Management Fee calculated pursuant to Section 7.2(b) above will be allocated between the Company and the Managed Subsidiaries in accordance with the Company’s corporate allocation policy and otherwise in accordance with GAAP.
(d) The Base Management Fee to which the Manager is entitled under this Section 7.2 is due in cash (subject to Section 7.2(e)) as of the last day of the relevant calendar month and shall be settled by the Company and the Managed Subsidiaries (in accordance with the allocation pursuant to Section 7.2(c) above) within 10 Business Days of receipt by the Company of notification pursuant to Section 7.2(b).
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(e) The Manager has the right but not the obligation to invest all or a portion of the Base Management Fee to which the Manager is entitled under this Section 7.2 in shares of Company Common Stock.
(i) If the Manager determines to invest all or any portion of its Base Management Fee with respect to a calendar month in shares of Company Common Stock, the Manager shall be entitled to purchase, upon payment and subject to clause (iii) below, that number of shares of Company Common Stock equal to such amount of the Base Management Fee calculated pursuant to Section 7.2(b), divided by the volume weighted average trading price of a share of Company Common Stock during the period commencing on and including the first Trading Day of such calendar month and ending on and including the last Trading Day of such calendar month (such volume weighted average trading price, the “ Base Fee VWAP ”).
(ii) In the event the Manager determines to invest all or any portion of its Base Management Fee for any calendar month in shares of Company Common Stock, it shall notify the Company and the Compensation Committee of the percentage of the Base Management Fee to be invested in shares of Company Common Stock during the period commencing on and including the third Trading Day after the Earnings Release Day immediately preceding such calendar month and ending on and including the 22 nd Trading Day after such Earnings Release Day (such period, an “ Election Period ”) (subject to the third sentence of this Section 7.2(e)(ii)). Such shares of Company Common Stock shall be issued to the Manager in accordance with Section 7.2(d). Any election made by the Manager during any Election Period pursuant to this Section 7.2(e)(ii) shall be effective beginning with the calendar month after such change of election is made and shall remain in effect for all subsequent Election Periods unless and until the Manager affirmatively changes in a timely manner such election in any subsequent Election Period for the next succeeding calendar month after such change of election is made. For the avoidance of doubt, the Parties acknowledge and agree that the Manager’s previous and ongoing election in connection with the Previous Agreement to invest 100% of any and all Base Management Fees to which the Manager is entitled in LLC Interests remains in full force and effect and shall apply to any and all Base Management Fees to which the Manager becomes entitled hereunder after the date hereof, until such election is changed in accordance with the preceding sentence; it being understood that following the Conversion such election shall be an election to invest in shares of Company Common Stock.
(iii) Notwithstanding anything in this Section 7.2(e) to the contrary, in the event that (x) the Manager has determined to invest all or any portion of its Base Management Fee for any calendar month in shares of Company Common Stock, and (y) the Base Fee VWAP for such calendar month exceeds the product of the closing price of a share of Company Common Stock on the 22 nd Trading Day after the immediately preceding Earnings Release Day multiplied by two (such product, the “ Threshold Price ”), then:
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(A) in the event the Manager previously had determined to invest 100% of its Base Management Fee for such calendar month in shares of Company Common Stock, then the Manager instead shall (x) receive from the Company cash in an amount (the “ Full Base Fee Cash Amount ”) equal to the product of such Base Management Fee multiplied by a fraction, the numerator of which shall be the excess of the Base Fee VWAP over the Threshold Price, and the denominator of which shall be the Base Fee VWAP, and (y) invest the remainder of such Base Management Fee (excluding the Full Base Fee Cash Amount) in shares of Company Common Stock as contemplated by the preceding clauses (i) and (ii); and
(B) in the event the Manager previously had determined to invest any portion (less than 100%) of its Base Management Fee for such calendar month in shares of Company Common Stock, then, in lieu of such investment, the Manager instead shall (x) receive from the Company cash in an amount (the “ Partial Base Fee Cash Amount ”) equal to the product of such portion of its Base Management Fee multiplied by a fraction, the numerator of which shall be the excess of the Base Fee VWAP over the Threshold Price, and the denominator of which shall be the Base Fee VWAP, and (y) invest the remainder of such portion of its Base Management Fee (excluding the Partial Base Fee Cash Amount) in shares of Company Common Stock as contemplated by the preceding clauses (i) and (ii).
Section 7.3 Performance Fee . (a) The Manager shall be entitled to receive the applicable Performance Fee, if any, in respect of each Fiscal Quarter.
(a) The Performance Fee, Performance Test Return and Performance Test Benchmark Return for a Fiscal Quarter is to be calculated by the Manager as of the Fiscal Quarter End Date for the relevant Fiscal Quarter and notice of such Performance Fee, Performance Test Return and Performance Test Benchmark Return, including the calculation thereof, shall be provided by the Manager to the Company and the Compensation Committee within five Business Days after that Fiscal Quarter End Date.
(b) The Performance Fee calculated pursuant to Section 7.3(b) above will be allocated between the Company and the Managed Subsidiaries in accordance with the Company’s corporate allocation policy and otherwise in accordance with GAAP.
(c) The Performance Fee, if any, to which the Manager is entitled under this Section 7.3 is due in cash (subject to Section 7.3(e)) as of the Fiscal Quarter End Date of the relevant Fiscal Quarter and shall be settled by the Company and the Managed Subsidiaries (in accordance with the allocation pursuant to Section 7.3(c) above) within 10 Business Days of receipt by the Company of notification pursuant to Section 7.3(b).
(d) The Manager has the right but not the obligation to invest all or a portion of the Performance Fee to which the Manager is entitled under this Section 7.3 in shares of Company Common Stock.
(i) If the Manager determines to invest all or any portion of its Performance Fee with respect to a Fiscal Quarter in shares of Company Common Stock, the Manager shall be entitled to purchase, upon payment and subject to clause (iii) below, that number of shares of Company Common Stock equal to such amount of the Performance Fee calculated pursuant to Section 7.3(b), divided by the volume weighted average trading price of a share of Company Common Stock during the period commencing on and including the first Trading Day of the last calendar month of the relevant Fiscal Quarter and ending on and including the last Trading Day of such calendar month (such volume weighted average trading price, the “ Performance Fee VWAP ”).
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(ii) In the event the Manager determines to invest all or any portion of its Performance Fee for any Fiscal Quarter in shares of Company Common Stock, it shall notify the Company and the Compensation Committee of the percentage of the Performance Fee to be invested in shares of Company Common Stock during the Election Period immediately preceding the Fiscal Quarter End Date for such Fiscal Quarter (subject to the third sentence of this Section 7.3(e)(ii)). Such shares of Company Common Stock shall be issued to the Manager in accordance with Section 7.3(d). Any election made by the Manager during any Election Period pursuant to this Section 7.3(e)(ii) shall be effective beginning with the fiscal quarter after such change of election is made and shall remain in effect for all subsequent Election Periods unless and until the Manager affirmatively changes in a timely manner such election in any subsequent Election Period for the next succeeding Fiscal Quarter after such change of election is made. For the avoidance of doubt, the Parties acknowledge and agree that the Manager’s previous and ongoing election in connection with the Previous Agreement to invest 100% of any and all Performance Fees to which the Manager is entitled in LLC Interests remains in full force and effect and shall apply to any and all Performance Fees to which the Manager becomes entitled hereunder after the date hereof, until such election is changed in accordance with the preceding sentence; it being understood that following the Conversion such election shall be an election to invest in shares of Company Common Stock.
(iii) Notwithstanding anything in this Section 7.3(e) to the contrary, in the event that (x) the Manager has determined to invest all or any portion of its Performance Fee with respect to a Fiscal Quarter in shares of Company Common Stock, and (y) the Performance Fee VWAP for such Fiscal Quarter exceeds the Threshold Price, then:
(A) in the event the Manager previously had determined to invest 100% of its Performance Fee for such Fiscal Quarter in shares of Company Common Stock, then the Manager instead shall (x) receive from the Company cash in an amount (the “ Full Performance Fee Cash Amount ”) equal to the product of such Performance Fee multiplied by a fraction, the numerator of which shall be the excess of the Performance Fee VWAP over the Threshold Price, and the denominator of which shall be the Performance Fee VWAP, and (y) invest the remainder of such Performance Fee (excluding the Full Performance Fee Cash Amount) in shares of Company Common Stock as contemplated by the preceding clauses (i) and (ii); and
(B) in the event the Manager previously had determined to invest any portion (less than 100%) of its Performance Fee for such Fiscal Quarter in shares of Company Common Stock, then, in lieu of such investment, the Manager instead shall (x) receive from the Company cash in an amount (the “ Partial Performance Fee Cash Amount ”) equal to the product of such portion of its Performance Fee multiplied by a fraction, the numerator of which shall be the excess of the Performance Fee VWAP over the Threshold Price, and the denominator of which shall be the Performance Fee VWAP, and (y) invest the remainder of such portion of its Performance Fee (excluding the Partial Performance Fee Cash Amount) in shares of Company Common Stock as contemplated by the preceding clauses (i) and (ii).
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(f) The Manager will notify the Company and the Compensation Committee of the Net Equity Value, Foreign Net Equity Value and U.S. Net Equity Value, and the calculations thereof, to be applied in the calculation of the Performance Fees payable in the then current Fiscal Quarter within 30 Business Days of the Fiscal Quarter End Date for the immediately prior Fiscal Quarter.
(g) The Manager will notify the Company and the Compensation Committee of the Additional Offering Foreign Net Equity Value and Additional Offering U.S. Net Equity Value, and the calculations thereof, to be applied in the calculation of the Performance Fees payable in the then current Fiscal Quarter within 30 Business Days of the first day of trading of the relevant Additional Offering.
Section 7.4 Registration Rights . On the Commencement Date, the Company and the Manager entered into a registration rights agreement whereby the Company has undertaken to register with the Securities and Exchange Commission the offer and resale of any LLC Interests purchased by the Manager, including but not limited to LLC Interests purchased as the Initial Investment pursuant to Section 2.2 and LLC Interests purchased pursuant to this Article VII. In connection with the Conversion, on the date hereof the Company and the Manager have entered into an Amended and Restated Registration Rights Agreement.
Section 7.5 Ability to Issue Shares of Company Common Stock . The Company will at all times have reserved a sufficient number of shares of Company Common Stock to enable the Manager to invest all reasonably foreseeable fees received in shares of Company Common Stock.
Section 7.6 Future Issuances of Company Preferred Stock . If the Company shall at any time issue Company Preferred Stock, the Company and the Manager may amend this Agreement with respect to the calculation of the Base Management Fees and Performance Fees payable to the Manager hereunder.
Article VIII
SECONDMENT OF PERSONNEL BY THE MANAGER
Section 8.1 Secondment of CEO and CFO . The Manager will arrange for the secondment to the Company on a wholly dedicated basis of individuals acceptable to the Company’s Board of Directors to serve as Chief Executive Officer and Chief Financial Officer. The Company’s Board of Directors will elect the seconded Chief Executive Officer and Chief Financial Officer as Officers of the Company in accordance with the terms of the Bylaws.
Section 8.2 Remuneration of CEO and CFO. (a) The Chief Executive Officer and Chief Financial Officer seconded to the Company pursuant to this Article VIII will, at all times, remain employees of, and be remunerated by, the Manager or a Manager Affiliate. The services performed by the Chief Executive Officer and the Chief Financial Officer will be provided at the cost of the Manager or a Manager Affiliate.
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(b) In establishing the level of remuneration for each of the Chief Executive Officer and the Chief Financial Officer, the Manager or a Manager Affiliate will reflect the following considerations:
(i) the standard remuneration guidelines as adopted by the Manager or a Manager Affiliate from time to time;
(ii) assessment by the Manager or a Manager Affiliate of the respective individual’s performance, the Manager’s performance and the performance, financial or otherwise, of the Company and its Subsidiaries; and
(iii) assessment by the Board of Directors of the Company of the respective individual’s performance and the performance of the Manager.
(c) The Manager will disclose the amount of remuneration of the Chief Executive Officer and Chief Financial Officer to the Board of Directors of the Company to the extent required for the Company to comply with the requirements of applicable law, including the Rules and Regulations.
Section 8.3 Secondment of Additional Personnel. The Manager and the Board of Directors of the Company may agree from time to time that the Manager will second to the Company one or more additional individuals to serve as officers or otherwise of the Company, upon such terms as the Manager and the Board of Directors of the Company may mutually agree.
Any such individuals will have such titles and fulfill such functions as the Manager and the Company may mutually agree.
Section 8.4 Removal of Seconded Individuals. The Board of Directors of the Company, after due consultation with the Manager, may at any time request that the Manager replace any individual seconded to the Company as provided in this Article VIII and the Manager shall, as promptly as practicable, replace any individual with respect to whom the Board of Directors shall have made its request.
Section 8.5 Indemnification. The Company shall grant rights to indemnification, and rights to be paid by the Company the expenses incurred in defending any proceeding in advance of its final disposition, to any individuals seconded to the Company as provided in this Article VIII in their respective capacities and in each case to the fullest extent of the provisions of the Certificate of Incorporation and the Bylaws.
Article IX
EXPENSE REIMBURSEMENT
Section 9.1 Company Expenses. The Company and the Managed Subsidiaries agree, jointly and severally, to indemnify and reimburse the Manager for, or pay on demand, all Costs incurred in relation to the proper performance of its powers and duties under this Agreement or in relation to the administration or management of the Company. All Costs incurred by the Manager to be reimbursed hereunder shall be included in the annual budget for the Company to be approved by the Company’s Board of Directors and shall be subject to review and approval by the Audit Committee of the Board of Directors of the Company. This includes, but is not limited to, Costs incurred by the Manager with respect to:
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(a) the performance by the Manager of its obligations under this Agreement;
(b) all fees required to be paid to the Securities and Exchange Commission;
(c) the acquisition, disposition, insurance, custody and any other transaction in connection with assets of the Company or any Managed Subsidiary, provided that no reimbursement will be made except for Costs that have been authorized by the Company and the relevant Managed Subsidiary;
(d) any proposed acquisition, disposition or other transaction in connection with an investment, provided that no reimbursement will be made except for Costs that have been authorized by the Company and the relevant Managed Subsidiary;
(e) the administration or management of the Company, the Managed Subsidiaries and the Business, including travel and accommodation expenses and all expenses of the relevant Boards of Directors and committees thereof, including Director compensation and out of pocket reimbursement. The Manager appointed member of the Company’s Board of Directors shall only receive out of pocket reimbursement for Board participation;
(f) financing arrangements on behalf of the Company or any Managed Subsidiary or guarantees in connection with the Company or any Managed Subsidiary, including hedging Costs;
(g) stock exchange listing fees;
(h) underwriting of any offer and sale of shares of Company Common Stock, including underwriting fees, handling fees, costs and expenses, amounts payable under indemnification or reimbursement provisions in the underwriting agreement and any amounts becoming payable in respect of any breach (other than for negligence, fraud or breach of duty) by the Manager of its obligations, representations or warranties (if any) under any such underwriting agreement;
(i) convening and holding meetings of holders of Company Common Stock, members or shareholders, as the case may be, the implementation of any resolutions and communications with holders of Company Common Stock or members or shareholders, as the case may be, and attending any meetings of holders of Company Common Stock, shareholders, members, Boards of Directors or committees of the Company or the Managed Subsidiaries;
(j) Taxes incurred by the Manager on behalf of the Company or any Subsidiary (including any amount charged by a supplier of goods or services or both to the Manager by way of or as a reimbursement for value added taxes) and financial institution fees;
(k) the engagement of agents (including real estate agents and managing agents), valuers, contractors and advisers (including accounting, financial, tax and legal advisers) whether or not the agents, valuers, contractors or advisers are associates of the Manager;
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(l) engagement of accountants for the preparation and/or audit of financial information, financial statements and tax returns of the Company and the Managed Subsidiaries;
(m) termination of this Agreement and the retirement or removal of the Manager and the appointment of a replacement;
(n) any court proceedings, arbitration or other dispute concerning the Company or any of the Managed Subsidiaries, including proceedings against the Manager, except to the extent that the Manager is found by a court to have acted with gross negligence, willful misconduct, bad faith or reckless disregard of its duties in carrying out its obligations under this Agreement, or engaged in fraudulent or dishonest acts, in which case any expenses paid or reimbursed under this Section 9.1(n) must be repaid;
(o) advertising Costs of the Company or any of the Managed Subsidiaries generally;
(p) any Costs related to promoting the Company, including Costs associated with investor relations activities; and
(q) complying with any other applicable law or regulation.
Article X
RESIGNATION AND REMOVAL OF THE MANAGER
Section 10.1 Resignation by the Manager. (a) The Manager may resign from its appointment as Manager and terminate this Agreement upon 90 days’ written notice to the Company. If the Manager resigns pursuant to this Section 10.1(a), until the date on which the resignation becomes effective, the Manager will, upon request of the Board of Directors of the Company, use reasonable efforts to assist the Board of Directors of the Company to find replacement management.
(a) If there is a Delisting Event, then
(i) unless otherwise approved in writing by the Manager: (A) any proceeds from the sale, lease or exchange of the assets of the Company or any of its Subsidiaries, subsequent to the Delisting Event, in one or more transactions, which in aggregate exceeded 15% of the value of the Company (as calculated by multiplying the price per share of Company Common Stock stated in clause (i) of the definition of Termination Fee by the aggregate number of shares of Company Common Stock issued and outstanding, other than those held in treasury, on the date of the Delisting Event) shall be reinvested in new assets of the Company (other than cash or cash equivalents) within six months of the date on which the aggregate proceeds from such transaction or transactions exceeded 15% of the value of the Company;
(B) neither the Company nor any of its Subsidiaries shall incur any new indebtedness or engage in any transactions with Stockholders of the Company or Affiliates of Stockholders of the Company; and
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(C) the Macquarie Group shall no longer have any obligation to provide investment opportunities to the Company pursuant to the Priority Protocol on Schedule 1 hereto, which Priority Protocol shall terminate immediately;
provided, however , that notwithstanding anything contained in Section 10.1(b)(i) to the contrary, if a Delisting Event has occurred and either an event of default has occurred in respect of any indebtedness of the Company or any of its Subsidiaries or the holder or holders of such indebtedness are in the process of restructuring or “working out” such indebtedness, then in no event shall the Manager take, or fail to take, any action pursuant to Section 10.1(b)(i) that would limit or impede any sale, lease, exchange or other disposition of assets of the Company or any of its Subsidiaries required by the terms of such indebtedness to repay such indebtedness;
and
(ii) the Manager shall, as soon as practicable, provide a proposal for an alternate method to calculate fees to act as Manager on substantially similar terms as set forth in this Agreement to the Board of Directors for approval, which approval shall not be unreasonably withheld or delayed; or
(iii) the Manager may elect to resign from its appointment as Manager and terminate this Agreement upon 30 days’ written notice to the Company and be paid the Termination Fee within 45 days of such notice.
Section 10.2 Removal of the Manager. (a) The Manager’s appointment and this Agreement may be terminated upon notice of the Board of Directors of the Company only if:
(i) the Performance Test Return (as calculated by the Manager and approved by the Compensation Committee as of a Fiscal Quarter End Date (which approval shall not be unreasonably withheld, delayed or conditioned)) is both:
(A) less than the number calculated by:
(i) multiplying the Performance Test Benchmark Return (as calculated by the Manager and approved by the Compensation Committee as of such Fiscal Quarter End Date (which approval shall not be unreasonably withheld, delayed or conditioned) by 0.7 if such Performance Test Benchmark Return is greater than 0 or
(ii) multiplying the Performance Test Benchmark Return (as calculated by the Manager and approved by the Compensation Committee as of such Fiscal Quarter End Date) by 1.3 if such Performance Test Benchmark Return is less than 0; and
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(B) less than the number calculated by subtracting 0.025 (2.5 percent) from the Performance Test Benchmark Return (as calculated by the Manager and approved by the Compensation Committee as of such Fiscal Quarter End Date (which approval shall not be unreasonably withheld, delayed or conditioned))
in 16 out of 20 consecutive Fiscal Quarters prior to and including the most recent full Fiscal Quarter and the holders of a minimum of 66 2/3% of shares of Company Common Stock, excluding from such calculation any shares of Company Common Stock owned by the Manager or any Manager Affiliate, vote to remove the Manager;
(ii) the Manager pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an involuntary case;
(C) consents to the appointment of a Custodian of it or for all or substantially all of its property; or
(D) makes a general assignment for the benefit of its creditors;
(iii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Manager in an involuntary case;
(B) appoints a Custodian of the Manager or for all or substantially all of its property; or
(C) orders the liquidation of the Manager;
and the order or decree remains unstayed and in effect for 90 days;
(iv) the Manager is in material breach of its obligations under this Agreement and such breach continues for a period of 60 days after notice thereof is given; or
(v) the Manager shall have (A) acted with gross negligence, willful misconduct, bad faith or reckless disregard of its duties in carrying out its obligations under this Agreement or (B) engaged in fraudulent or dishonest acts.
(b) If the Manager’s appointment is terminated pursuant to this Section 10.2, all directors, executives, employees, representatives, secondees, assignees and delegates of the Manager and Manager Affiliates within MIRA who are performing the services that are the subject of this Agreement will cease work at the date of the Manager’s termination or at any other time as determined by the Manager.
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Section 10.3 Withdrawal of Branding. Upon termination of this Agreement pursuant to Section 10.1(a), within 30 days of notice of resignation of the Manager pursuant to Section 10.1(b)(iii) or within 30 days of termination pursuant to Section 10.2, the Company and the Managed Subsidiaries will cease to use, and will cause their Subsidiaries to cease to use, the Macquarie brand entirely including (without limitation) changing their respective names to remove any reference to “Macquarie”, provided that, to the extent the Board of Directors of the Company deems it necessary or advisable, the Company and the Managed Subsidiaries may use “Macquarie” when referencing their previous names.
Section 10.4 Resignation of the Chairman and the Seconded Officers. Upon the termination of this Agreement, each of the Chairman, the Chief Executive Officer, the Chief Financial Officer and any other individuals seconded to the Company pursuant to Article VIII shall resign his or her respective position with the Company.
Section 10.5 Directions . After a written notice of termination has been given under this Article X, the Company may direct the Manager to undertake any actions necessary to transfer any aspect of the ownership or control of the assets of the Company to the Company or to any nominee of the Company and to do all other things necessary to bring the appointment of the Manager to an end, and the Manager will comply with all such reasonable directions. In addition, the Manager must at the Company’s expense deliver to new management or the Company any books or records held by the Manager under this Agreement and must execute and deliver such instruments and do such things as may reasonably be required to permit new management of the Company to effectively assume its responsibilities.
Article XI
INDEMNITY
Section 11.1 Indemnification of Manager . The Company and each Managed Subsidiary, jointly and severally, agrees to indemnify the Manager, any controlling person of the Manager, and each of their respective directors, officers, employees, agents, Affiliates and representatives (each, an “ Indemnified Party ”) and hold each of them harmless against any and all losses, (including lost profits) claims, damages, expenses or liabilities, joint or several (collectively, “ Liabilities ”), to which the Indemnified Parties may become liable, directly or indirectly, arising out of, or relating to, this Agreement, unless it is finally judicially determined that the Liabilities resulted from the gross negligence, willful misconduct, bad faith or reckless disregard of duty of any Indemnified Party or fraudulent or dishonest acts of such Indemnified Party. The Company and the Managed Subsidiaries further agree to reimburse each Indemnified Party immediately upon request for all expenses (including reasonable attorneys’ fees and expenses) as they are incurred in connection with the investigation of, preparation for, defense of, or providing evidence in any action, claim, suit, proceeding or investigation, directly or indirectly, arising out of, or relating to, this Agreement or the Manager’s services hereunder, whether or not pending or threatened and whether or not any Indemnified Party is a party to such proceeding. The Company and the Managed Subsidiaries also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company, the Managed Subsidiaries, or any person asserting claims on behalf of or in right of the Company or the Managed Subsidiaries, directly or indirectly, arising out of, or relating to, this Agreement or the Manager’s services thereunder, unless it is finally judicially determined that such Liability resulted from the gross negligence, willful misconduct, bad faith or reckless disregard of duty of such Indemnified Party or fraudulent or dishonest acts of such Indemnified Party. Moreover, in no event, regardless of the legal theory advanced, shall any Indemnified Party be liable to the Company, the Managed Subsidiaries, or any person asserting claims on behalf of or in the right of the Company or the Managed Subsidiaries for any consequential, indirect, incidental or special damages of any nature. In the event that an Indemnified Party is requested or required to appear as a witness in any action brought by or on behalf of or against the Company or the Managed Subsidiaries or any Affiliate of the Company or the Managed Subsidiaries in which such Indemnified Party is not named as a defendant, the Company and the Managed Subsidiaries agree to reimburse the Manager for all expenses incurred by it in connection with such Indemnified Party’s appearing and preparing to appear as such a witness, including, without limitation, the reasonable fees and disbursements of its legal counsel.
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The Company and the Managed Subsidiaries agree that, without the Manager’s prior written consent, they will not settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any claim, action, suit, proceeding or investigation in respect of which indemnification could be sought hereunder (whether or not the Manager or any other Indemnified Party is an actual or potential party to such claim, action, suit, proceeding or investigation), unless (a) such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Party from any liabilities arising out of such claim action, suit, proceeding or investigation and (b) the parties agree that the terms of such settlement shall remain confidential.
Section 11.2 Indemnification of Company . The Manager agrees to indemnify the Company and hold it harmless against any Liabilities to the same extent as the foregoing indemnity from the Company and the Managed Subsidiaries to the Manager, but only insofar as it is finally judicially determined that the Liabilities arose out of or were based on the gross negligence, willful misconduct, bad faith or reckless disregard of duty of the Manager in the performance of its duties under this Agreement or its fraudulent or dishonest acts.
Section 11.3 Indemnification . The rights of the Indemnified Parties referred to above shall be in addition to any rights that any Indemnified Party may otherwise have. The indemnities referred to in this Article XI survive the termination of this Agreement.
Article XII
LIMITATION OF LIABILITY OF THE MANAGER
Section 12.1 Limitation of Liability . The Manager shall not be liable for, and the Company and the Managed Subsidiaries will not take any action against the Manager to hold the Manager liable for, any error of judgment or mistake of law or for any loss suffered by the Company and the Managed Subsidiaries (including, without limitation, by reason of the purchase, sale or retention of any security) in connection with the performance of the Manager’s duties under this Agreement, except for a loss resulting from gross negligence, willful misconduct or bad faith on the part of the Manager in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement or its fraudulent or dishonest acts.
Section 12.2 Manager May Rely . The Manager may take and may act upon:
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(a) the opinion or advice of legal counsel, which may be in-house counsel to the Company or the Manager, any U.S.-based law firm of recognized standing, or other legal counsel reasonably acceptable to the Board of Directors of the Company, in relation to the interpretation of this Agreement or any other document (whether statutory or otherwise) or generally in connection with the Company;
(b) advice, opinions, statements or information from bankers, accountants, auditors, valuation consultants and other persons consulted by the Manager who are in each case believed by the Manager in good faith to be expert in relation to the matters upon which they are consulted;
(c) a document which the Manager believes in good faith to be the original or a copy of an appointment by a Stockholder in respect of a share of Company Common Stock or holder of a Certificate in respect of a share of Company Common Stock of a person to act as their agent for any purpose connected with the Company; and
(d) any other document provided to the Manager in connection with the Company upon which it is reasonable for the Manager to rely;
and the Manager will not be liable for anything done, suffered or omitted by it in good faith in reliance upon such opinion, advice, statement, information or document.
Article XIII
LEGAL ACTIONS
Section 13.1 Third Party Claims . (a) The Manager will notify the Company promptly of any claim made by any third Party in relation to the assets of the Company and will send to the Company any notice, claim, summons or writ served on the Manager concerning the Company.
(b) The Manager will not without the express written consent of the Board of Directors of the Company purport to accept any claims or liabilities of which it receives notification pursuant to Section 13.1(a) above on behalf of the Company or any Managed Subsidiaries or make any settlement or compromise with any third Party in respect of the Company.
Article XIV
MISCELLANEOUS
Section 14.1 Obligation of Good Faith; No Fiduciary Duties . The Manager must perform its duties under this Agreement in good faith and for the benefit of the Company. The relationship of the Manager to the Company and the Managed Subsidiaries is as an independent contractor and nothing in this Agreement shall be construed to impose on the Manager an express or implied fiduciary duty.
Section 14.2 Compliance . (a) The Manager must (and must ensure that each of its officers and agents) comply with any law, including the Rules and Regulations and the NYSE Rules, to the extent that it concerns the functions of the Manager under this Agreement.
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(b) The Manager must maintain management systems, policies, procedures and internal contracts that reasonably ensure that the Manager observes its duties and obligations under this Agreement.
Section 14.3 Effect of Termination . Termination of this Agreement shall not affect (i) the right of the Manager to receive payments on any unpaid balance of the compensation described in Article VII hereof earned prior to such termination and for any additional period during which the Manager serves as such for the Company or the Managed Subsidiaries or to receive reimbursement of expenses pursuant to Article IX hereof, in each case subject to applicable law or (ii) the obligations of the parties hereto under Sections 10.3 and 10.5.
Section 14.4 Notices . Any notice under this Agreement shall be sufficient in all respects if given in writing and delivered by commercial courier providing proof of delivery or sent by facsimile and addressed as follows or addressed to such other person or address as such Party may designate in writing for receipt of such notice.
If to the Company or the Managed Subsidiaries:
125 West 55 th Street
New York, New York, 10019
Facsimile: (212) 231-1828
Attention: James Hooke
If to the Manager:
Macquarie Infrastructure Management (USA) Inc.
125 West 55th Street
New York, New York, 10019
Facsimile: (212) 231-1828
Attention: James Hooke
Section 14.5 Captions . The captions in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect. This Agreement will be binding upon and shall inure to the benefit of the Parties hereto and their respective successors.
Section 14.6 Applicable Law . This Agreement shall be construed in accordance with the laws of the State of New York.
Section 14.7 Amendment . This Agreement may only be amended, or its provisions modified or waived, in a writing signed by the Party against which such amendment, modification or waiver is sought to be enforced.
Section 14.8 Severability . Each provision of this Agreement is intended to be severable from the others so that if, any provision or term hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remaining provisions and terms hereof, provided, however, that the provisions governing payment of the Management Fee described in Article VII hereof are not severable.
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Section 14.9 Entire Agreement . This Agreement constitutes the sole and entire agreement of the Parties with regards to the subject matter of this Agreement, and any written or oral agreements, statements, promises, negotiations or representations not expressly set forth in this Agreement are of no force and effect.
[ Remainder of Page Left Intentionally Blank ]
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IN WITNESS WHEREOF, the Company, the Managed Subsidiaries and the Manager have caused this Agreement to be executed as of the day and year first above written.
MACQUARIE INFRASTRUCTURE
CORPORATION |
MACQUARIE INFRASTRUCTURE
MANAGEMENT (USA) INC. |
|||
By: | /s/ James Hooke | By: | /s/ James Hooke | |
Name: James Hooke | Name: James Hooke | |||
Title: Chief Executive Officer | Title: President and Chief Executive Officer | |||
By: | /s/ Todd Weintraub | By: | /s/ Todd Weintraub | |
Name: Todd Weintraub | Name: Todd Weintraub | |||
Title: Chief Financial Officer | Title: Treasurer |
MIC OHANA CORPORATION | ||
By: |
/s/ James Hooke |
|
Name: James Hooke | ||
Title: President and Chief Executive Officer | ||
By: |
/s/ Michael Kernan |
|
Name: Michael Kernan | ||
Title: General Counsel and Secretary |
[ Signature Page to Third Amended and Restated Management Services Agreement ]
SCHEDULE I
Priority Protocol
The Company has first priority ahead of all current and future entities managed by the Manager or by members of the Macquarie Group within MIRA in each of the following infrastructure acquisition opportunities that are within the United States:
● | airport fixed base operations, |
● | district energy, |
● | airport parking, and |
● | User Pays Assets, Contracted Assets and Regulated Assets that represent an investment of greater than AUD 40 million, subject to the Existing Qualifications set forth below. |
The Company has first priority ahead of all current and future entities managed by the Manager or any Manager Affiliate in all investment opportunities originated by a party other than the Manager or any Manager Affiliate where such party offers the opportunity exclusively to the Company and not to any other entity under the management of the Manager or any Manager Affiliate within MIRA.
Sch. I- 1 |
Exhibit 4.2
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
BETWEEN
MACQUARIE INFRASTRUCTURE CORPORATION
AND
MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC.
Dated as of May 21, 2015
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of May 21, 2015, is between Macquarie Infrastructure Corporation, a Delaware corporation (the “Company”) and Macquarie Infrastructure Management (USA) Inc., a Delaware corporation (the “Manager”).
RECITALS
WHEREAS, Macquarie Infrastructure Company LLC, the predecessor entity of the Company (“Predecessor”) and the Manager are party to a Registration Rights Agreement, dated as of December 21, 2004 (the “Original Agreement”);
WHEREAS, pursuant to a Certificate of Conversion filed with the Secretary of State of the State of Delaware effective as of May 21, 2015, the Predecessor converted (the “Conversion”) into the Company, with each limited liability interest of Predecessor converting to one share of common stock, par value $0.001 per share (the “Common Stock,” which term shall include interests in the predecessors of the Company that will convert into such Common Stock in the Conversion) of the Company;
WHEREAS, pursuant to the terms of the Third Amended and Restated Management Services Agreement (the “Management Services Agreement”) dated as of the date hereof among the Manager, the Company, MIC Ohana Corporation and certain directly wholly owned subsidiaries of the Company as may from time to time execute a counterpart to the Management Services Agreement (each, a “Managed Subsidiary”; together, the “Managed Subsidiaries”), the Company and each Managed Subsidiary have agreed to appoint the Manager to manage their respective businesses and affairs as therein described;
WHEREAS, pursuant to the terms of the Management Services Agreement, the Manager has the right but not the obligation to invest all or a portion of the management fees it receives from the Company and the Managed Subsidiaries, from time to time, in Common Stock of the Company in accordance with the terms therein (each, a “Management Fee Investment”; together, the “Management Fee Investments”);
WHEREAS, the parties hereto desire to revise the Original Agreement in connection with the Conversion.
NOW, THEREFORE, in consideration of the foregoing and the covenants contained herein, the parties agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
The following terms, when used in this Agreement, shall, except where the context otherwise requires, have the following meanings (such definitions to be equally applicable to the singular and plural forms thereof):
“Additional Initial Investment” means the 600,000 shares of Trust Stock comprising 30% of the Manager’s initial investment in the trust that was a predecessor entity of the Company.
“Automatically Effective Shelf” means any Registration Statement of the Company on Form S-3ASR that is currently effective and on file with the Commission that can be used for the registration and sale of the Company’s Common Stock.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law or executive order to close.
“Commission” means the Securities and Exchange Commission.
“Common Stock” shall have the meaning set forth in the Recitals hereto.
“Company Registration Statement” shall have the meaning set forth in Section 3.1.
“Deferral Notice” shall have the meaning set forth in Section 4.2.
“Effective Period” means, with respect to a Shelf Registration Statement, the period commencing from the time such Shelf Registration Statement becomes or is declared effective until all Registrable Shares registered under such Registration Statement shall have been sold pursuant thereto or shall have otherwise ceased to be Registrable Shares.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Initial Investment” means the 1,400.000 shares of Trust Stock comprising 70% of the Manager’s initial investment in the trust that was a predecessor entity of the Company.
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“LLC Interest” means a limited liability company interest in the Predecessor.
“Management Fee Investment” shall have the meaning set forth in the Recitals hereto.
“Management Services Agreement” shall have the meaning set forth in the Recitals hereto.
“Material Event” shall have the meaning set forth in Section 4.1(iv).
“Notice and Questionnaire” shall have the meaning set forth in Section 2.3.
“Original Agreement” shall have the meaning set forth in the Recitals hereto.
“Person” means any natural person, corporation, firm, partnership, association, government, governmental agency or other entity, whether acting in an individual, fiduciary or other capacity.
“Prospectus” means the prospectus included in any Shelf Registration Statement filed in accordance with Section 2 or a Company Registration Statement described in Section 3, as amended or supplemented by any amendment or prospectus supplement, including post-effective amendments, and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such Prospectus.
“Prospectus Supplement” shall have the meaning set forth in Section 2.1.
“Registrable Shares” means the shares of Common Stock that were purchased by the Manager as the Initial Investment or the Additional Initial Investment or in connection with Management Fee Investments, plus the shares of Common Stock purchased by the Manager in connection with Management Fee Investments after the date hereof; provided, however, that Registrable Shares shall not include any shares of Common Stock that have been sold to the public either pursuant to a registration statement or Rule 144 or that have been sold in a private transaction in which the transferor’s rights under this Agreement were not assigned.
“Registration Expenses” shall have the meaning set forth in Section 6.
“Registration Statement” means any Shelf Registration Statement or any Company Registration Statement.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended.
“Shelf Registration Statement” means any of the shelf registration statements referred to in Section 2.1, including the Prospectus included therein, as amended or supplemented by any amendment or supplement, including post-effective amendments, and all materials incorporated by reference or explicitly deemed to be incorporated by reference in each such Shelf Registration Statement.
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“Trust Stock” means shares of stock in the trust that was a predecessor entity of the Company; it being understood that the shares of Trust Stock were exchanged for LLC Interests in accordance with the Predecessor’s LLC operating agreement and that such LLC Interests will convert into shares of Common Stock pursuant to the Conversion.
Other terms defined herein shall have the meanings assigned to them herein, and capitalized terms used herein without definition shall have the meanings ascribed thereto in the Management Services Agreement.
SECTION 2
DEMAND REGISTRATION
2.1 So long as the Manager holds Registrable Shares or can be reasonably foreseen to acquire Registrable Shares pursuant to future Management Fee Investments that have not been previously registered pursuant hereto, the Company agrees, upon request of the Manager, to use its best efforts to either (a) if there is no Automatically Effective Shelf, file one or more Shelf Registration Statements (which may include Registrable Shares covered by a prior Shelf Registration Statement) providing for the registration, and the sale on a continuous or delayed basis (including through brokers and dealers) by the Manager, of all such Registrable Shares, pursuant to Rule 415 or any similar rule that may be adopted by the Commission or (b) if there is an Automatically Effective Shelf, file one or more prospectus supplements (each, a “Prospectus Supplement”) with the Commission for the sale and distribution of all or such portion of the Manager’s Registrable Shares as are specified in such request; provided, however, that the Company shall not be obligated to file more than four (4) such Shelf Registration Statements or Prospectus Supplements in any twelve-month period. Each such request from the Manager shall indicate whether the Manager wishes to sell the Registrable Shares pursuant to an underwritten offering.
The Manager shall be named as a selling security holder in such Shelf Registration Statement or Prospectus Supplement, in such a manner as to permit the Manager to deliver such Shelf Registration Statement or Prospectus Supplement to purchasers of Registrable Shares in accordance with applicable law.
2.2 The Company further agrees that it shall cause each Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of such Shelf Registration Statement or the date of any such amendment or supplement, and each Prospectus Supplement, as of the date of such Prospectus Supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act; and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in light of the circumstances under which they were made) not misleading. If any Shelf Registration Statement, as amended or supplemented from time to time, ceases to be effective for any reason at any time during an Effective Period (other than because all Registrable Shares registered thereunder shall have been sold pursuant thereto or shall have otherwise ceased to be Registrable Shares), the Company shall use its best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof.
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2.3 The Manager agrees that if it wishes to sell Registrable Shares pursuant to a Shelf Registration Statement or Prospectus Supplement, it will do so only in accordance with this Section 2.3. The Manager agrees to deliver a Notice and Questionnaire, a form of which is attached as Schedule 1 to this Agreement (the “Notice and Questionnaire”), to the Company at least ten (10) Business Days prior to the filing of any Shelf Registration Statement or Prospectus Supplement.
SECTION 3
PIGGYBACK REGISTRATION
3.1 Right to Piggyback.
(a) Subject to the terms and conditions hereof, whenever the Company proposes (i) to register, either for its own account or the account of a security holder or holders, any shares of Common Stock under the Securities Act and the form of registration statement (the “Company Registration Statement”) to be used may be used for the registration of Registrable Shares or (ii) to sell Common Stock pursuant to a Prospectus Supplement to an Automatically Effective Shelf and Registrable Shares can be included in such Prospectus Supplement (each, a “Piggyback Registration”), the Company shall give prompt written notice to the Manager of the Company’s intention to effect such a registration and shall include in the Company Registration Statement or Prospectus Supplement all Registrable Shares with respect to which the Manager has provided the Company with a written request for inclusion therein within twenty (20) calendar days after the receipt of the Company’s notice to the extent reasonably practicable, but shall include all such shares to which the Manager has provided the Company with a written request for inclusion therein within three (3) business days after the Company’s notice.
(b) Notwithstanding the foregoing, the Company shall not be required to notify the Manager or include Registrable Shares in any registration on (i) Form S-1, S-3 or S-8, or their successor forms, under the Securities Act, or a Prospectus Supplement thereto, relating solely to stock purchase or other equity plans or an equity distribution program, including without limitation, the Company’s direct stock purchase and dividend reinvestment program, (ii) Form S-4 or successor forms relating solely to a transaction within the scope of Rule 145, or (iii) any other form (other than Form S-1, S-3 or SB-1, or their successor forms), or a Prospectus Supplement thereto, that does not include substantially the same information as would be required to be included in a Company Registration Statement or Prospectus Supplement pursuant to Section 2 above.
(c) The Company shall have the right to abandon, terminate and/or withdraw any Company Registration Statement initiated by it under this Section 3 prior to the effectiveness of such Company Registration Statement and/or any Prospectus Supplement at any time prior to the consummation of an offering pursuant thereto, whether or not the Manager has elected to include securities in such Company Registration Statement or Prospectus Supplement.
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3.2 If the Piggyback Registration with respect to which the Company gives notice is for a public offering involving an underwriting, the Company shall so advise the Manager as a part of the written notice given pursuant to Section 3.1(a). In such event, the right of the Manager to be named selling security holder in a Company Registration Statement or Prospectus Supplement pursuant to Section 3 shall be conditioned upon the Manager’s participation in such underwriting and the inclusion of the Manager’s Registrable Shares in the underwriting to the extent provided herein. The Company and the Manager shall enter into an underwriting agreement in customary form, with the underwriters selected by the Company.
3.3 Cutback.
Notwithstanding any other provision of this Section 3 to the contrary, if the representative of the underwriters determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriters and the Company may limit the number of Registrable Shares to be included in the Company Registration Statement or Prospectus Supplement and underwriting. In the event of any such limitation of the number of shares of Common Stock to be underwritten, the Company shall so advise the Manager, and the number of shares included in such Company Registration Statement or Prospectus Supplement and underwriting shall be allocated first to the Company for securities being sold for its own account and thereafter to the Manager. If the Manager disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company and the underwriter, and such Registrable Shares shall be withdrawn from such Company Registration Statement or Prospectus Supplement.
SECTION 4
REGISTRATION PROCEDURES
The following provisions shall apply to any Registration Statement or Prospectus Supplement filed pursuant to Sections 2 and 3 hereof.
4.1 The Company shall:
(i) prepare and file with the Commission a Registration Statement on any form that may be utilized by the Company or a Prospectus Supplement that shall permit the disposition of the Registrable Shares in accordance with the intended method or methods thereof, as specified in writing by the Manager;
(ii) before filing any Registration Statement or related Prospectus or any Prospectus Supplement or any amendments or supplements thereto with the Commission, furnish to the Manager copies of all such documents proposed to be filed and reflect in each such document, when so filed with the Commission, such comments as the Manager reasonably shall propose within five (5) Business Days of the delivery of such copies to the Manager;
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(iii) (A) prepare and file with the Commission such amendments and post-effective amendments, if any, to any Registration Statement and file with the Commission any other required document that may be necessary to keep such Registration Statement continuously effective until the expiration of the Effective Period, subject to Section 4.2, (B) cause the related Prospectus to be supplemented by any required Prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act and cause any required Prospectus Supplement to be filed pursuant to Rule 424 (or any similar provisions then in force), and (C) comply with the provisions of the Securities Act applicable to it with respect to the disposition of all Registrable Shares covered by a Registration Statement or Prospectus Supplement during the Effective Period in accordance with the intended methods of disposition by the Manager set forth in a Registration Statement as so amended or such Prospectus as so supplemented or any Prospectus Supplement;
(iv) promptly notify the Manager (A) when each Registration Statement or the Prospectus included therein, or any amendment or supplement to the Prospectus or post-effective amendment, or any Prospectus Supplement has been filed with the Commission, and, with respect to each Registration Statement or any post effective amendment, when the same has become effective, (B) of any request, following the effectiveness of any Registration Statement or the filing of any Prospectus Supplement, by the Commission or any other federal or state governmental authority for amendments or supplements thereto or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation or written threat of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Shares for sale in any jurisdiction or the initiation or written threat of any proceeding for such purpose, (E) of the occurrence of (but not the nature of or details concerning) any event or the existence of any fact (a “Material Event”) as a result of which any Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or any Prospectus or Prospectus Supplement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided, however, that no notice by the Company shall be required pursuant to this clause (E) in the event that the Company either promptly files a supplement to update the Prospectus or a Prospectus Supplement or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into the Registration Statement or Prospectus Supplement, which, in either case, contains the requisite information with respect to such Material Event that results in such Registration Statement or Prospectus or Prospectus Supplement no longer containing any untrue statement of material fact or omitting to state a material fact necessary to make the statements contained therein not misleading), (F) of the determination by the Company that a post-effective amendment to a Registration Statement will be filed with the Commission, which notice may, at the discretion of the Company (or as required pursuant to Section 4.2), state that it constitutes a Deferral Notice, in which event the provisions of Section 4.2 shall apply or (G) at any time during which a Prospectus or Prospectus Supplement is required to be delivered under the Securities Act, that a Registration Statement, Prospectus or Prospectus Supplement, or amendment or supplement or post-effective amendment thereto, does not conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder;
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(v) prior to any public offering of the Registrable Shares pursuant to a Registration Statement or Prospectus Supplement, use its best efforts to register or qualify or cooperate with the Manager in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as the Manager reasonably requests in writing (which request may be included in the Notice and Questionnaire);
(vi) prior to any public offering of the Registrable Shares pursuant to a Registration Statement or Prospectus Supplement, use its best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effective Period in connection with the Manager’s offer and sale of Registrable Shares pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of such Registrable Shares in the manner set forth in the Registration Statement and the related Prospectus or Prospectus Supplement; provided that the Company will not be required to (A) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it would not otherwise be required to qualify but for this Agreement, (B) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction in which it is not then so subject, or (C) become subject to the reporting requirements of such jurisdiction;
(vii) use its best efforts to prevent the issuance of and, if issued, to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or any post-effective amendment thereto, and to lift any suspension of the qualification of any of the Registrable Shares for sale in any jurisdiction in which they have been qualified for sale, in each case at the earliest practicable date;
(viii) upon reasonable notice, for a reasonable period prior to the filing of any Registration Statement or Prospectus Supplement, and throughout the applicable Effective Period, make available at reasonable times at the Company’s principal place of business or such other reasonable place for inspection by a representative of any underwriter, placement agent or counsel appointed by the Manager in connection with an underwritten offering, such financial and other information and books and records of the Company, and cause the officers, directors, trustees and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary, in the judgment of the counsel to the Manager, to conduct a reasonable “due diligence” investigation; provided, however, that each such representative appointed by the Manager in connection with an underwritten offering shall be required to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Company in writing as being confidential, subject to customary exceptions;
(ix) if reasonably requested by the Manager, promptly incorporate in a supplement or post-effective amendment to a Registration Statement or Prospectus Supplement such information as the Manager shall, on the basis of a written opinion of nationally recognized counsel experienced in such matters, determine to be required to be included therein by applicable law and make any required filings of such supplement to the Prospectus or such post-effective amendment; provided that the Company shall not be required to take any actions under this Section 4.1(viii) that are not, in the reasonable opinion of counsel for the Company, in compliance with applicable law;
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(x) promptly furnish to the Manager, upon its request and without charge, at least one (1) conformed copy of each Registration Statement or Prospectus Supplement, and any amendments thereto, including financial statements but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (unless requested in writing to the Company by the Manager); and
(xi) during each Effective Period, deliver to the Manager in connection with any sale of Registrable Shares pursuant to a Registration Statement or Prospectus Supplement, without charge, as many copies of the Prospectus or Prospectus Supplement relating to such Registrable Shares including any Preliminary Prospectus or preliminary Prospectus Supplement and any amendment or supplement thereto as the Manager may reasonably request; and the Company hereby consents (except during such periods in which a Deferral Notice is outstanding and has not been revoked or during any period that is not a “trading window” as defined in the Company’s Insider Trading Policy) to the use of such Prospectus, Prospectus Supplement or each amendment or supplement thereto by the Manager in connection with any offering and sale of the Registrable Shares covered by such Prospectus, Prospectus Supplement or any amendment or supplement thereto in the manner set forth therein.
4.2 Upon (i) the issuance by the Commission of a stop order suspending the effectiveness of a Registration Statement or the initiation of proceedings with respect to a Registration Statement under Section 8(d) or 8(e) of the Securities Act or (ii) the occurrence of any event or the existence of any Material Event as a result of which a Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus or Prospectus Supplement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will (A) in the case of clause (ii) above, subject to the third sentence of this provision, as promptly as practicable, prepare and file a post-effective amendment to such Registration Statement or an amendment or supplement to the related Prospectus or any Prospectus Supplement or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement or Prospectus Supplement so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus or Prospectus Supplement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, use best efforts to cause it to be declared effective as promptly as practicable, and (B) in the case of clauses (i) and (ii) above, give notice to the Manager that the availability of any Registration Statement or Prospectus Supplement is suspended (a “Deferral Notice”). Upon receipt of any Deferral Notice, the Manager agrees not to sell any Registrable Shares pursuant to a Registration Statement or Prospectus Supplement until the Manager’s receipt of copies of the supplemented or amended Prospectus or Prospectus Supplement provided for in clause (A) above, or until it is advised in writing by the Company that the Prospectus or Prospectus Supplement may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus or Prospectus Supplement. The Company will use its best efforts to ensure that the use of the Prospectus or Prospectus Supplement may be resumed (x) in the case of clause (i) above, as promptly as practicable, (y) in the case of clause (ii) above, as soon as, in the sole judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter.
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4.3 The Manager agrees that, upon receipt of any Deferral Notice from the Company, the Manager shall forthwith discontinue (and cause any placement or sales agent or underwriters acting on their behalf to discontinue) the disposition of Registrable Shares pursuant to the Registration Statement or Prospectus Supplement applicable to such Registrable Shares until the Manager (i) shall have received copies of such amended or supplemented Prospectus or Prospectus Supplement and, if so directed by the Company, deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in the Manager’s possession of the Prospectus or Prospectus Supplement covering such Registrable Shares at the time of receipt of such notice or (ii) shall have received notice from the Company that the disposition of Registrable Shares pursuant to the Registration Statement or Prospectus Supplement may continue.
4.4 The Company may require the Manager in connection with the Registrable Shares as to which any offering pursuant to Section 2.1 or 3 is being effected to furnish to the Company such information regarding the Manager and the Manager’s intended method of distribution of such Registrable Shares as the Company may from time to time reasonably request in writing, but only to the extent that such information is required in order to comply with the Securities Act. The Manager agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished by the Manager to the Company or of the occurrence of any event in either case as a result of which any Prospectus or Prospectus Supplement relating to such offering contains or would contain an untrue statement of a material fact regarding the Manager or the Manager’s intended method of disposition of such Registrable Shares or omits to state any material fact regarding the Manager or the Manager’s intended method of disposition of such Registrable Shares required to be stated therein or necessary to make the statements therein not misleading, and promptly to furnish to the Company any additional information required to correct and update any previously furnished information or required so that such Prospectus or Prospectus Supplement shall not contain, with respect to the Manager or the disposition of such Registrable Shares, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
4.5 The Company shall comply with all applicable rules and regulations of the Commission and timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
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4.6 The Company shall provide CUSIP numbers for all Registrable Shares covered by an offering no later than the effective date of the Registration Statement or the filing date of any Prospectus Supplement, as the case may be.
4.7 The Company and the Manager shall provide such information as is required for any filings required to be made with FINRA.
4.8 From the period beginning with the termination of the Management Services Agreement and ending six months after the last Management Fee Investment, the Company will not, and will not permit any of its “affiliates” (as defined in Rule 144) to, resell any of the Securities that have been reacquired by any of them except pursuant to an effective registration statement under the Securities Act.
4.9 The Company shall enter into such customary agreements and take all such other necessary and lawful actions in connection therewith in order to expedite or facilitate disposition of such Registrable Shares.
SECTION 5
MANAGER’S OBLIGATIONS
The Manager agrees, by acquisition of the Registrable Shares, that it shall not be entitled to sell any of such Registrable Shares pursuant to a Registration Statement or Prospectus Supplement or to receive a Prospectus or Prospectus Supplement relating thereto, unless it has furnished the Company with a Notice and Questionnaire as required pursuant to Section 2.3 hereof (including the information required to be included in such Notice and Questionnaire) and the information set forth in the next sentence. The Manager agrees promptly to furnish to the Company all information required to be disclosed in order to make the information previously furnished by it to the Company not misleading and any other information regarding the Manager and the distribution of the Registrable Shares that may be required to be disclosed in a Registration Statement or Prospectus Supplement under applicable law or pursuant to Commission comments. The Manager agrees, so long as the Management Services Agreement is in effect, to comply with the Company’s Insider Trading Policy. The Manager further agrees not to sell any Registrable Shares pursuant to a Registration Statement or Prospectus Supplement without delivering, or causing to be delivered, a Prospectus or Prospectus Supplement to the purchaser thereof and, within ten (10) Business Days of a request by the Company confirm the amount of Registrable Shares sold pursuant to any Registration Statement or Prospectus Supplement. In the absence of a response, the Company may assume that all of the Manager’s Registrable Shares were so sold.
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SECTION 6
REGISTRATION EXPENSES
The Company agrees to bear and to pay or cause to be paid promptly upon request being made therefor all expenses incident to the Company’s performance of or compliance with this Agreement, including (i) all Commission and any FINRA registration and filing fees and expenses, (ii) all fees and expenses in connection with the qualification of the Registrable Shares for offering and sale under the state securities and blue sky laws referred to in Section 4.1(v) hereof, including reasonable fees and disbursements of one counsel for the placement agent or underwriters, if any, in connection with such qualifications, (iii) all expenses relating to the preparation, printing, distribution and reproduction of the Registration Statement, including any related Prospectus, or Prospectus Supplement, each amendment or supplement to each of the foregoing, the certificates representing the Registrable Shares and all other documents relating hereto, (iv) fees and expenses of the registrar and transfer agent for the Common Stock, (v) fees, disbursements and expenses of counsel and independent certified public accountants of the Company (including the expenses of any opinions or “cold comfort” letters required by or incident to such performance and compliance) and (f) reasonable fees, disbursements and expenses of one counsel for the Manager retained in connection with any underwritten offering of the Registrable Shares pursuant to a Registration Statement or Prospectus, as selected by the Manager and reasonably acceptable to the Company (including the expenses of any opinion), and fees, expenses and disbursements of any other persons, including special experts, retained by the Company in connection with such registration (collectively, the “Registration Expenses”). To the extent that any Registration Expenses are incurred, assumed or paid by the Manager or any placement agent therefor or underwriter thereof, the Company shall promptly after receipt of a documented request therefor reimburse such person for the full amount of the Registration Expenses so incurred, assumed or paid. Notwithstanding the foregoing, the Manager shall pay all placement agent fees and commissions and underwriting discounts and commissions attributable to the sale of the Registrable Shares being registered and the fees and disbursements of any counsel or other advisors or experts retained by the Manager, other than the counsel and experts specifically referred to above.
SECTION 7
INDEMNIFICATION
7.1 Indemnification by the Company.
The Company will indemnify the Manager, each of its officers, directors and partners, each person controlling the Manager within the meaning of either the Securities Act of the Exchange Act, each underwriter of public offerings effected pursuant to this Agreement, if any, and each person who controls any such underwriter within the meaning of either the Securities Act and the Exchange Act against all claims, losses, expenses, damages and liabilities (or actions, proceedings or settlements with respect thereto) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any Registration Statement as originally filed or in any amendment thereto, or in any preliminary Prospectus or the Prospectus, or in any amendment or supplement thereto or in any Prospectus Supplement, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading (in the case of any preliminary Prospectus or the Prospectus or any Prospectus Supplement, in the light of the circumstances under which they were made), or any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law applicable to the Company or any rule or regulation promulgated under the Securities Act, the Exchange Act or any such state law and relating to action or inaction required of the Company in connection with any such Registration Statement as originally filed or any amendment thereto, preliminary Prospectus, Prospectus or Prospectus Supplement. The Company will reimburse the Manager, each of its officers, directors and partners, and each person controlling the Manager, each such underwriter and each person who controls any such underwriter for any reasonable legal and any other expenses incurred in connection with investigating, defending or settling any such claim, loss, damage, liability or action; provided, however, that the indemnity agreement contained in this Section 7.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld); and provided further that the Company will not be liable in any such case to the extent that any such claim, loss, damage or liability arises out of or is based on any untrue statement or omission based upon written information furnished to the Company by the Manager or underwriter specifically for use therein. The foregoing indemnity agreement with respect to any preliminary Prospectus shall not inure to the benefit of the Manager or underwriter, or any person controlling the Manager, or underwriter, from whom the persons asserting any such losses, claims, damages or liabilities purchased shares in the offering, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Manager or underwriter to such person at or prior to the written confirmation of the sale of the shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability.
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7.2 Indemnification by the Manager.
The Manager will, as to each registration in which the Manager participates, indemnify the Company, each of its directors and officers, each underwriter and each person who controls the Company or such underwriter within the meaning of either the Securities Act or the Exchange Act, and the Manager, each of its officers, directors and partners and each person controlling the Manager, against all claims, losses, expenses, damages and liabilities (or actions, proceedings or settlements in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any Registration Statement as originally filed or in any amendment thereto, or in any preliminary Prospectus, Prospectus or Prospectus Supplement, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any preliminary Prospectus or the Prospectus or any Prospectus Supplement, in the light of the circumstances under which they were made), and will reimburse the Company, and each of its directors, officers, partners, underwriters and controlling persons for any reasonable legal and any other expenses incurred in connection with investigating, defending or settling any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in any such Registration Statement as originally filed or any amendment thereto, preliminary Prospectus, Prospectus or Prospectus Supplement, in reliance upon and in conformity with written information furnished to the Company by the Manager specifically for use therein; provided, however, that (i) the indemnity agreement contained in this Section 7.2 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Manager (which consent shall not be unreasonably withheld) and (ii) that the total amount for which the Manager shall be liable under this Section 7.2. shall not in any event exceed the aggregate net proceeds received by the Manager from the sale of Registrable Shares held by the Manager in such registration.
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7.3 Indemnification Procedures.
Each party entitled to indemnification under this Section 7 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided that counsel for the Indemnifying Party proposed to conduct the defense of such claim or litigation shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may participate in such defense at such Indemnified Party’s election and expense; provided further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, unless such failure resulted in prejudice to the Indemnifying Party; and provided further, that an Indemnified Party (together with all other Indemnified Parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses of such counsel to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between such Indemnified Party and any other party represented by counsel for the Indemnifying Party in such proceeding. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to all Indemnified Parties of a release from all liability in respect to such claim or litigation.
7.4 Survival; Contribution.
(a) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party or any officer, director or controlling person of such Indemnified Party and shall survive the transfer of securities. If the indemnification provided for in this Section 7 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any losses, claims, damages or liabilities referred to herein, the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall, to the extent permitted by applicable law, contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand, and of the Indemnified Party, on the other, in connection with the circumstances that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
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(b) Notwithstanding anything in this Section 7 to the contrary, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions of the underwriting agreement shall control.
SECTION 8
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
8.1 No person may participate in any registration hereunder which is underwritten unless the person (i) agrees to accept the terms of the underwriting agreement as agreed upon by the Company and the underwriters selected in accordance with this Agreement, and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements.
SECTION 9
REPORTS UNDER THE SECURITIES LAWS
9.1 With a view to making available to the Manager the benefits of Rule 144 and any other rule or regulation of the Commission that may at any time permit the Manager to sell shares of Common Stock to the public without registration, the Company agrees to use its commercially reasonable efforts to:
(a) make and keep public information available, as those terms are understood and defined in Rule 144, at all times subsequent to ninety (90) days after the effective date of any registration statement covering an underwritten public offering filed under the Securities Act by the Company;
(b) file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act at any time after it is subject to the reporting requirements thereof; and
(c) furnish to the Manager upon request a written statement by the Company that it has complied with the reporting requirements of Rule 144 (at any time after ninety (90) days after the effective date of the registration statement filed by the Company), and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed by the Company as may be reasonably requested by the Manager in availing itself of any rule or regulation of the Commission permitting the selling of any of the securities without registration.
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SECTION 10
TRANSFER OF REGISTRATION RIGHTS
Provided that the Company is given written notice by the Manager at the time of any transfer of Registrable Shares by the Manager stating the name and address of the transferee of such Registrable Shares and identifying the securities with respect to which the rights under this Agreement are being assigned, the rights of the Manager under Sections 2 and 3 of this Agreement may be assigned to a transferee or assignee who (i) receives at least 600,000 shares of Common Stock (as adjusted for stock dividends, stock splits, recapitalizations and the like that occur after the date of this Agreement) or (ii) is a subsidiary, affiliate, parent, general partner, limited partner or retired partner of the Manager, so long as such transfer of securities is in accordance with the Company’s organizational documents and any other agreements with the Company regarding transfer of Registrable Shares and all applicable state and federal securities laws and regulations, and provided further that the transferee or assignee of such rights assumes in writing the obligations of the Manager under this Agreement. The Company may prohibit the transfer of the Manager’s rights under this Section to any proposed transferee or assignee who the Company reasonably believes is a competitor of the Company.
SECTION 11
INFORMATION FURNISHED BY THE MANAGER
The Manager shall furnish to the Company such information regarding the Manager and the distribution proposed by the Manager as the Company may reasonably request in writing and as shall be reasonably required in connection with any registration, offering, qualification or compliance referred to in this Agreement.
SECTION 12
MISCELLANEOUS
12.1 Representations.
Each of the parties hereto represents that this Agreement has been duly authorized, executed and delivered by such party and constitutes a legal, valid and binding obligation of such party, enforceable against it in accordance with the terms of this Agreement, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies and (iii) to the extent that the indemnification provisions contained in this Agreement may be limited by applicable laws.
12.2 Expenses.
Except as provided in Section 6, the Company and the Manager shall each bear their own expenses incurred with respect to this Agreement.
12.3 Notices.
All notices and other communications required or permitted under this Agreement shall be deemed to have been duly given and made if in writing and if served by personal delivery to the party for whom intended, by facsimile transmission, by telegram or telex or by registered or certified mail (postage prepaid, return receipt requested), sent to the following addresses (or such other address for a party as shall be specified by like notice):
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(a) If to the Company:
Macquarie Infrastructure Corporation
125 West 55th Street
New York, New York 10019
Facsimile: (212) 231-1828
Attention: Michael Kernan
(b) If to the Manager:
Macquarie Infrastructure Management (USA) Inc.
125 West 55th Street
New York, New York 10019
Facsimile: (212) 231-1000
Attention: Jay Davis
12.4 Waiver.
No delay on the part of any party hereto with respect to the exercise of any right, power, privilege or remedy under this Agreement shall operate as a waiver thereof, nor shall any exercise or partial exercise of any such right, power, privilege or remedy preclude any further exercise thereof or the exercise of any other right, power, privilege or remedy. No modification or waiver by either party hereto of any provision of this Agreement, or consent to any departure by the other party therefrom, shall be effective in any event unless in writing as set forth in Section 12.12 hereof, and then only in the specific instance and for the purpose for which given. Notwithstanding the foregoing, each party hereto shall have the right to waive compliance by the other party with any of the provisions hereof, or to modify such provisions to a less restrictive obligation of the other party on such terms as such party shall determine, with or without prior notice to the other party.
12.5 Remedies.
The rights, powers, privileges and remedies hereunder are cumulative and not exclusive of any other right, power, privilege or remedy the parties hereto would otherwise have.
12.6 Entire Agreement.
This Agreement constitutes the entire agreement and understanding between the Manager and the Company, and supersedes all prior agreements and understandings relating to the subject matter hereof.
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12.7 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
12.8 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The execution and delivery of this Agreement by facsimile shall have the same force and effect as delivery of original signatures and each party may use such facsimile signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used.
12.9 Severability.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
12.10 Headings.
The various headings of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provisions hereof.
12.11 Amendment and Waiver.
Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement will be effective unless such modification, amendment or waiver is approved in writing by the Company and the Manager and any such amendment, waiver, discharge or termination shall be binding on the Company and the Manager. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and the written consent of the Manager. Any amendment or waiver effected in accordance with this Section 12.11 shall be binding upon the Company and the Manager, and each of their respective successors and permitted assigns.
12.12 Succession and Assignment.
Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors and administrators of the parties hereto. Except as otherwise expressly provided to the contrary, the provisions of this Agreement and the rights and obligations of the parties hereunder shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and be binding upon the Manager and each of the Manager’s legal representatives, heirs, legatees, distributees, permitted assigns and transferees by operation of law, whether or not any such person has become a party to this Agreement or has agreed in writing to join herein and to be bound by the terms, conditions and restrictions hereof, and shall not otherwise be for the benefit of any third party.
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12.13 Information Confidential.
Each party hereto acknowledges that the information received pursuant hereto may be confidential and for its use only, and it will not use such confidential information in violation of the Exchange Act or reproduce, disclose or disseminate such information to any other person (other than its employees or agents having a need to know the contents of such information and its attorneys), except in connection with the exercise of rights under this Agreement, unless such information is available to the public generally or such party is required by a governmental body to disclose such information.
12.14 Right to Enforcement.
The Manager shall have the right to directly enforce the agreements made hereunder by the Company, to the extent it deems such enforcement necessary or advisable to protect its rights.
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IN WITNESS WHEREOF, the parties hereto have each executed this Registration Rights Agreement as of the date first written above.
THE COMPANY: | |||
MACQUARIE INFRASTRUCTURE CORPORATION | |||
/s/ James Hooke | |||
Name: | James Hooke | ||
Title: | Chief Executive Officer | ||
/s/ Todd Weintraub | |||
Name: | Todd Weintraub | ||
Title: | Chief Financial Officer | ||
THE MANAGER: | |||
MACQUARIE INFRASTRUCTURE MANAGEMENT | |||
(USA) INC. | |||
/s/ James Hooke | |||
Name: | James Hooke | ||
Title: | President and Chief Executive Officer | ||
/s/ Todd Weintraub | |||
Name: | Todd Weintraub | ||
Title: | Treasurer |
[ Signature Page to Amended and Restated Registration Rights Agreement ]
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SCHEDULE 1
FORM OF NOTICE AND QUESTIONNAIRE
SHARES OF COMMON STOCK OF
MACQUARIE INFRASTRUCTURE CORPORATION
Macquarie Infrastructure Management (USA) Inc. (the “Manager”), beneficial holder of [_______] shares of beneficial interest (the “Registrable Shares”) of Macquarie Infrastructure Corporation (the “Company”) hereby requests that the Company file with the Securities and Exchange Commission (the “Commission”) a [prospectus supplement (the “Prospectus Supplement”) relating to a proposed public offering by the Manager pursuant to the Company’s registration statement on Form S-3][shelf registration statement (the “Shelf Registration Statement”)] for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of [●] of the Manager’s Registrable Securities. This notice is being made pursuant to the Manager’s rights under Section 2 of the Amended and Restated Registration Rights Agreement, dated [●], 2015 (the “Registration Rights Agreement”). [The proposed offering shall be an underwritten public offering.] All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.
The Manager, as a beneficial owner of Registrable Shares, is entitled to the benefits of the Registration Rights Agreement. In order to sell or otherwise dispose of any Registrable Shares pursuant to the [Prospectus Supplement][Shelf Registration Statement], the Manager generally will be required to be named as a selling security holder in the [Prospectus Supplement][related Prospectus] and to deliver [the Prospectus Supplement][a Prospectus] to purchasers of Registrable Shares. If the Manager does not complete this Notice and Questionnaire and deliver it to the Company as provided below, the Manager will not be named as a selling security holder in the [Prospectus Supplement][Prospectus] and therefore will not be permitted to sell any Registrable Shares pursuant to the [Prospectus Supplement][Shelf Registration Statement]. Upon receipt of a completed Notice and Questionnaire from the Manager, following the effectiveness of any Shelf Registration Statement, if applicable, the Company will, as promptly as practicable but in any event within five Business Days of such receipt, file such [Prospectus Supplement][amendments to the Shelf Registration Statement or supplements to the related Prospectus] as are necessary to permit the Manager to deliver such [Prospectus Supplement][Prospectus] to purchasers of Registrable Shares.
Certain legal consequences arise from being named as a selling security holder in the [Prospectus Supplement][Shelf Registration Statement and the related Prospectus]. Accordingly, the Manager, as a holder and beneficial owner of Registrable Shares, is advised to consult its own securities law counsel regarding the consequences of being named or not being named as a selling security holder in the [Prospectus Supplement][Shelf Registration Statement and the related Prospectus].
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NOTICE
The Manager hereby gives notice to the Company of its intention to sell or otherwise dispose of Registrable Shares beneficially owned by it and listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the [Prospectus Supplement][Shelf Registration Statement]. The Manager, by signing and returning this Notice and Questionnaire, understands that it will be bound by the terms and conditions of this Notice and Questionnaire and the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the Manager has agreed to indemnify and hold harmless the Company’s directors and officers and each person, if any, who controls the Company within the meaning of either the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), from and against certain losses arising in connection with statements concerning the undersigned made in the [Prospectus Supplement][Shelf Registration Statement or the related Prospectus] in reliance upon the information provided in this Notice and Questionnaire.
QUESTIONNAIRE
COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE SHOULD BE
RETURNED TO THE COMPANY AS FOLLOWS:
1 COPY BY FACSIMILE TO [________], FAX: [________]
WITH THE ORIGINAL COPY TO FOLLOW TO:
MACQUARIE INFRASTRUCTURE CORPORATION AT:
125 West 55th Street
New York, New York 10019
Attention: Jay Davis
The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate and complete.
1. | Full legal name of the Manager, as a selling security holder: |
Macquarie Infrastructure Management (USA) Inc.
(a) Full legal name of The Depository Trust Company Participant (if applicable) through which Registrable Shares listed in (3) below are held:
Name: | ||
DTC No.: | ||
Contact Person: | ||
Telephone No.: |
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(b) Are you a broker-dealer registered pursuant to Section 15 of the Exchange Act?
(c) If your response to Item 1(b) above is no, are you an “affiliate” of a broker-dealer registered pursuant to Section 15 of the Exchange Act?
For the purposes of this Item 1(c), an “affiliate” of a registered broker-dealer shall include any company that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such broker-dealer, and does not include any individuals employed by such broker-dealer or its affiliates.
2. | Address for notices to Manager: |
[●]
Telephone, including area code: [________]
Fax, including area code: [●]
Contact Person:
3. | Beneficial ownership of Registrable Shares: |
(a) Number of Registrable Shares beneficially owned:
_____ shares of beneficial interest of Macquarie Infrastructure Corporation
(b) CUSIP No(s). of such Registrable Shares beneficially owned:
4. | Beneficial Ownership of the Company’s securities (other than Registrable Securities) owned by the Manager: |
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED IS NOT THE BENEFICIAL OR REGISTERED OWNER OF ANY SHARES OF COMMON STOCK OTHER THAN THE REGISTRABLE SHARES LISTED ABOVE IN ITEM (3).
(a) Type and Amount of other shares of Common Stock beneficially owned by the Manager:
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(b) CUSIP No(s). of such other shares of Common Stock beneficially owned:
5. | Nature of Beneficial Ownership: |
(a) Full legal name of Manager’s controlling stockholders who have sole or shared voting or dispositive power over the Registrable Shares:
(b) Business address (including street address)(or residence if no business address), telephone number and facsimile number of such person(s):
Address: | ||
Telephone: | ||
Fax: |
6. | Plan of Distribution: |
Except as set forth below, the Manager (including its donees or pledgees) intends to distribute the Registrable Shares listed above in Item (3) pursuant to the [Prospectus Supplement][Shelf Registration Statement] only as follows (if at all): Such Registrable Shares may be sold from time to time directly by the Manager or alternatively through underwriters or broker-dealers or agents. If the Registrable Shares are sold through underwriters or broker-dealers, the Manager will be responsible for underwriting discounts or commissions or agents’ commissions. Such Registrable Shares may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve block transactions) (i) on any national securities exchange or quotation service on which the Registrable Shares may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market or (iv) through the writing of options. In connection with sales of the Registrable Shares or otherwise, the undersigned may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Registrable Shares, and deliver Registrable Shares to close out such short positions, or loan or pledge Registrable Shares to broker-dealers that in turn may sell such securities.
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State any exceptions here:
Note: In no event will such method(s) of distribution take the form of an underwritten offering of the Registrable Shares without the prior agreement of the Company.
The Manager acknowledges that it understands its obligation to comply with the provisions of the Exchange Act, and the rules thereunder relating to stock manipulation, particularly Regulation M thereunder (or any successor rules or regulations), and the provisions of the Securities Act relating to Prospectus delivery, in connection with any offering of Registrable Shares pursuant to the [Prospectus Supplement][Shelf Registration Statement]. The Manager agrees that neither it nor any person acting on its behalf will engage in any transaction in violation of such provisions.
The Manager hereby acknowledges its obligations under the Registration Rights Agreement to indemnify and hold harmless certain persons set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed under certain circumstances to indemnify the Manager against certain liabilities.
In accordance with the Manager’s obligation under the Registration Rights Agreement to provide such information as may be required by law for inclusion in a [Prospectus Supplement][Shelf Registration Statement], the Manager agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time [prior to the consummation of the offering pursuant to the Prospectus Supplement][while the Shelf Registration Statement remains effective]. All notices to the Manager hereunder and pursuant to the Registration Rights Agreement shall be made in writing to the Manager at the address set forth in Item 1(a) of this Notice and Questionnaire.
By signing below, the Manager acknowledges that it is the beneficial owner of the Registrable Shares set forth herein, represents that the information herein is accurate and consents to the disclosure of the information contained herein in its answers to Items (1) through (6) above and the inclusion of such information in the [Prospectus Supplement][Shelf Registration Statement and the related Prospectus]. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the [Prospectus Supplement][Shelf Registration Statement and the related Prospectus].
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Once this Notice and Questionnaire is executed by the undersigned beneficial owner and received by the Company, the terms of this Notice and Questionnaire, and the representations and warranties contained herein, shall be binding on, shall inure to the benefit of and shall be enforceable by the respective successors, heirs, personal representatives and assigns of the Company and the Manager. This Agreement shall be governed in all respects by the laws of the State of New York.
IN WITNESS WHEREOF, the Manager, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.
THE MANAGER: | ||
MACQUARIE INFRASTRUCTURE MANAGEMENT | ||
(USA) INC. | ||
Name: | ||
Title: | ||
Name: | ||
Title: | ||
Dated: |
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Exhibit 4.3
SECOND SUPPLEMENTAL INDENTURE (as defined herein) (this “ Second Supplemental Indenture ”), dated as of May 21, 2015, between Macquarie Infrastructure Corporation, a Delaware corporation (the “ Company ”), and Wells Fargo Bank, National Association, as trustee under the Indenture referred to below (the “ Trustee ”).
WITNESSETH:
WHEREAS, the predecessor to the Company, Macquarie Infrastructure Company LLC, a Delaware limited liability company (“ MIC LLC ”), has heretofore executed and delivered to the Trustee a Senior Debt Securities Indenture dated July 15, 2014 (the “ Base Indenture ”) and a First Supplemental Indenture to the Base Indenture, dated as of July 15, 2014 (the “ First Supplemental Indenture, ” and together with the Base Indenture, the “ Indenture ”), providing for the issuance of its 2.875% Convertible Senior Notes due 2019 (the “ Notes ”);
WHEREAS, on May 21, 2015, MIC LLC converted (the “ Conversion ”) from a Delaware limited liability company to a Delaware corporation named Macquarie Infrastructure Corporation (“ MIC Corp ”));
WHEREAS, at the effective time of the Conversion (the “ Effective Time ”) each limited liability company interest (“ LLC Interest ”) of MIC LLC issued and outstanding immediately prior to the Effective Time, by virtue of the Conversion and without any action on the part of MIC LLC, the Company or the holders of the LLC Interests, was automatically converted into a share of common stock, par value $0.001 per share (the “ Common Stock ”) of MIC Corp;
WHEREAS, Section 8.07 of the First Supplemental Indenture provides that, in connection with, among other things, any recapitalization, reclassification or change of the LLC Interests of MIC LLC, as a result of which LLC Interests would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) with respect to or in exchange for such LLC Interests, then the Company shall execute with the Trustee a supplemental indenture providing that the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes for the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) receivable upon such recapitalization, reclassification or change of the LLC Interests by a holder of a number of LLC Interests issuable upon conversion of such Notes immediately prior to such recapitalization, reclassification or change of the LLC Interests;
WHEREAS, Section 7.02(a) of the Indenture provides that the Company, when authorized by the resolutions of the Board of Directors, and the Trustee may enter into a supplemental indenture, without the consent of the holders of any of the Notes at the time outstanding, to make provision with respect to the conversion rights of the holders of Notes pursuant to the requirements of Section 8.07 of the Indenture;
WHEREAS, immediately prior to the Effective Time, each $1,000 principal amount of Notes was convertible into approximately 11.7942 shares of LLC Interests;
WHEREAS, the Company has heretofore delivered or is delivering contemporaneously herewith to the Trustee the Officers’ Certificate and the Opinion of Counsel described in Sections 1.02 of the Base Indenture and 8.07(b) of the First Supplemental Indenture; and
WHEREAS, all other acts and proceedings required by applicable law and the Indenture necessary to authorize the execution and delivery of this Second Supplemental Indenture and to make this Second Supplemental Indenture a valid and binding agreement for the purposes expressed herein, in accordance with its terms, have been complied with or have been duly done or performed.
NOW, THEREFORE, in consideration of the foregoing and notwithstanding any provision of the Indenture which, absent this Second Supplemental Indenture, might operate to limit such action, the parties hereto, intending to be legally bound hereby, agree as follows:
Article 1
AMENDMENTS
Section 1.01. Settlement Upon Conversion . In accordance with Section 7.02(a) of the First Supplemental Indenture, from and after the date of this Second Supplemental Indenture, the right to convert each $1,000 principal amount of Notes into LLC Interests is hereby changed, to a right to convert such $1,000 principal amount of Notes into Common Stock, calculated so that a holder will be entitled to receive a number of shares of Common Stock equal to the number of LLC Interests such holder would have been entitled to receive prior to the Conversion. The provisions of the Indenture, as modified herein, shall continue to apply, mutatis mutandis, to the Holders’ right to convert each Note into the Common Stock.
Section 1.02. Effectiveness . This Second Supplemental Indenture will become effective and operative and binding upon each of the Company, the Trustee and the Holders as of the Effective Time.
Article 2
MISCELLANEOUS PROVISIONS
Section 2.01. Capitalized Terms . Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
Section 2.20 . Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions of the Indenture shall remain in full force and effect.
Section 2.03. Governing Law . The laws of the State of New York shall govern this Second Supplemental Indenture.
Section 2.04. Headings, Etc . The titles and headings of the articles and sections of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 2.05. Separability . In case any provision in the Indenture, as modified by this Second Supplemental Indenture, or in the Notes 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 2.06. Execution in Counterparts . This Second Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
[ Signature Page Follows ]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the date first above written.
MACQUARIE INFRASTRUCTURE CORPORATION | ||
By: |
/s/ James Hooke |
|
Name: | James Hooke | |
Title: | Chief Executive Officer | |
By: |
/s/ Michael Kernan |
|
Name: | Michael Kernan | |
Title: | General Counsel | |
WELLS FARGO BANK, NATIONAL ASSOCIATION as Trustee
|
||
By: | /s/ Stefan Victory | |
Name: |
Stefan Victory |
|
Title: | Vice President |
[ Signature Page to Second Supplemental Indenture ]
Exhibit 99.1
Macquarie Infrastructure Corporation | ||
125 West 55th Street
New York, NY10019
United States |
Telephone +1 212 231 1000
Facsimile +1 212 231 1828
Internet www.macquarie.com/mic |
|
Media Release
MACQUARIE INFRASTRUCTURE CORPORATION COMPLETES CONVERSION FROM LIMITED LIABILITY COMPANY TO CORPORATION |
|
· | Conversion completed effective 12:01am on May 21, 2015 |
· | Limited liability company membership interests converted one for one into shares of common stock of corporation |
· | Shares continue to trade as “MIC” on the New York Stock Exchange |
New York, NY – May 21, 2015 Macquarie Infrastructure Corporation (NYSE: MIC) announced that it has successfully completed a planned conversion to a Delaware corporation from a Delaware limited liability company. The conversion was effective at 12:01am on May 21, 2015.
The conversion had no impact on the business or management of the Company and has been treated as a tax-free exchange under relevant Internal Revenue Service regulations. Investors automatically received one share of common stock for each limited liability company interest held at the time of the conversion.
MIC undertook the conversion in an effort to become eligible for consideration for inclusion in various stock indices. Management also believes that certain potential investors were evaluating the Company and choosing not to invest solely because they believed it to be a pass-through entity. In fact, MIC made an election to be treated as a corporation for tax purposes, and not a pass-through entity, in 2007.
The conversion also constitutes a Make-Whole Fundamental Change with respect to the Company's $350 million of outstanding Convertible Senior Notes. Holders of the Notes that choose to convert those securities into shares of common stock from May 21, 2015 until the close of business on June 18, 2015 will be entitled to a conversion rate of 12.7836 shares per $1000 face amount of Notes.
“We are pleased to have completed the conversion to a corporation in a timely manner and remain confident that it will be viewed positively by the investment community,” said James Hooke, chief executive officer of MIC.
The Company’s equity securities will continue to be listed on the New York Stock Exchange and will trade under the symbol “MIC”.
About Macquarie Infrastructure Corporation
Macquarie Infrastructure Corporation owns, operates and invests in a diversified group of infrastructure businesses providing basic services to customers in the United States. Its businesses consist of a bulk liquid terminals business, International-Matex Tank Terminals, an airport services business, Atlantic Aviation, a gas processing and distribution business, Hawaii Gas, and several entities comprising a Contracted Power and Energy segment. MIC is managed by a wholly-owned subsidiary of the Macquarie Group. For additional information, please visit the Macquarie Infrastructure Corporation website at www.macquarie.com/mic. MIC-G
MIC is not an authorized deposit-taking institution for the purposes of the Banking Act 1959 (Commonwealth of Australia). The obligations of MIC do not represent deposits or other liabilities of Macquarie Bank Limited ABN 46 008 583 542 (MBL). MBL does not guarantee or otherwise provide assurance in respect of the obligations of MIC.
For further information, please contact:
Exhibit 99.2
DESCRIPTION OF OUR CAPITAL STOCK
The following description is a summary of the material provisions of our certificate of incorporation and bylaws and specified provisions of the Delaware General Corporate Law, or DGCL, in each case to the extent that they relate to shares of our capital stock. This summary does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all of the provisions of the certificate of incorporation, the bylaws and the DGCL. These documents may be amended from time to time. You should read each of these documents because they, not this description, will define your rights as shareholders.
General
Our authorized capital stock consists of (i) 500,000,000 shares of common stock, $0.001, par value per share, (ii) 100 shares of special stock, $0.001, par value per share, and (iii) 100,000,000 shares of preferred stock, par value $0.001 per share.
Common Stock
Voting. Each share of common stock is entitled to one vote on each matter submitted to a vote at a meeting of shareholders. Except as provided in the certificate of incorporation, the holders of common stock and special stock vote separately as different classes. Holders of common stock are not entitled to vote cumulatively for the election of directors. Except as provided in the certificate of incorporation or under the DGCL, all matters to be voted on by holders of common stock must be approved by a majority of the voting power of the shares present in person or represented by proxy at the meeting of shareholders or, in the case of the election of directors, by a plurality of the votes cast at a meeting at which a quorum is present (consisting of the holders of a majority of the voting power of the stock issued and outstanding and entitled to vote, present in person or by proxy).
Dividends. Subject to applicable law and the preference of any other stock ranking prior to the common stock as to the payment of dividends, holders of common stock are entitled to receive dividends in amounts as determined by the board of directors. We may pay dividends consisting of cash, property or shares of our capital stock.
Delaware law allows a corporation to pay dividends only out of surplus, as determined under Delaware law or, if there is no surplus, out of net profits for the fiscal year in which the dividend was declared and for the preceding fiscal year. Under Delaware law, however, a corporation cannot pay dividends out of net profits if, after paying the dividend, the corporation’s capital would be less than the capital represented by the outstanding stock of all classes having a preference upon the distribution of assets.
Transfer Restriction . The certificate of incorporation and bylaws do not restrict the transfer of shares of common stock but the bylaws provide that we have the power to enter into and perform any agreement with any shareholders to restrict the transfer of shares of our stock in any manner not prohibited by the DGCL.
Election of Directors. Under the certificate of incorporation, at any time when the management services agreement (including any amendments thereto, the “Management Services Agreement”) that we have entered into with Macquarie Infrastructure Management (USA) Inc. (our “Manager”) is in effect and our Manager or any of its affiliates holds at least 200,000 shares of common stock (as adjusted to reflect any subsequent equity splits or similar recapitalizations), holders of common stock, voting separately as a class, will be entitled to elect our directors other than one director who will be elected by the holders of special stock and who will act as the chairman of the board of directors.
At any time when the Management Services Agreement is not in effect or neither our Manager nor any of its affiliates holds at least 200,000 shares of common stock (as adjusted to reflect any subsequent equity splits or similar recapitalizations), the holders of common stock will be entitled to elect all of the directors to be elected at an election.
Other Rights. Upon our liquidation, dissolution or winding up, all holders of common stock will be entitled to share equally, on a per share basis, in all of our assets of whatever kind available for distribution.
Trading. Our common stock is listed on the NYSE under the symbol “MIC.” Our transfer agent and registrar is Computershare, Inc.
Special Stock
Concurrently with our May 2015 conversion from a corporation to a limited liability company, we issued to our Manager 100 shares of special stock. The sole purpose for the issuance of special stock to our Manager was to preserve our Manager’s previously-existing right to appoint one director to serve as the chairman of our board of directors, which right would otherwise have been lost upon consummation of the conversion.
Voting . Each share of special stock is entitled to one vote on each matter to which holders of special stock are entitled to vote or provide consent.
Holders of special stock are not entitled to vote on or consent to any matter, except those matters explicitly set forth in the certificate of incorporation, which are as follows:
• | any further authorization for issuance of shares of special stock, which issuance will require the prior affirmative vote or written consent of the holders of a majority of the shares outstanding of special stock, voting or consenting separately as a class; |
• | any issuance of shares of preferred stock, which issuance will require the prior affirmative or written consent of the holders of a majority of the shares outstanding of special stock, voting or consenting separately as a class; |
• | any amendment of any provision of the certificate of incorporation or bylaws that would adversely affect the rights of holders of special stock as a class, which amendment will require the prior affirmative vote or written consent of the holders of a majority of the shares outstanding of special stock, voting or consenting separately as a class; |
• | election of one director who will act as the chairman of the board of directors, which election will require the affirmative vote or written consent of the holders of special stock, voting or consenting separately as a class, as discussed immediately below in the section entitled “— Election of One Director”; |
• | removal of any director for cause, which removal will require the affirmative vote of the holders of at least 66 2/3% of the voting power of the issued and outstanding shares of common stock and special stock (and any series of preferred stock then entitled to vote at an election of directors), voting together as a single class; and |
• | removal of any director elected by the holders of special stock, voting or consenting separately as a class, without cause, which removal will require the affirmative vote or written consent of the holders of at 66 2/3% of the voting power of the issued and outstanding shares of special stock, voting or consenting separately as a class. |
Election of One Director. Under the certificate of incorporation, holders of special stock are entitled to elect one director, who will act as the chairman of the board of directors, at any time when the Management Services Agreement is in effect and our Manager or any of its affiliates holds at least 200,000 shares of common stock (as adjusted to reflect any subsequent equity splits or similar recapitalizations).
Dividends. The certificate of incorporation provides that holders of special stock are not entitled to any dividends.
Transfer Restriction . The certificate of incorporation provides that holders of special stock may not offer, sell, pledge, transfer, dispose or distribute shares of special stock or enter into any agreement with respect to the foregoing.
Redemption. Upon the earlier of (i) the termination of the Management Services Agreement or (ii) the date on which neither our Manager nor any of its affiliates holds at least 200,000 shares of common stock (as adjusted to reflect any subsequent equity splits or similar recapitalizations) (in either case, a “Redemption Event”), all outstanding shares of special stock will be redeemed by us at a price equal to $0.001 per share, within five business days after we become aware of the occurrence of a Redemption Event. If we do not have sufficient funds legally available to redeem all outstanding shares of special stock, we will redeem a pro rata portion of each holder’s redeemable shares out of any legally available funds and redeem the remaining shares as soon as practicable after we have funds legally available thereafter. Any shares of special stock which are redeemed or otherwise acquired by us or any of our subsidiaries will be automatically and immediately canceled and retired and will not be reissued, sold or transferred. Neither we nor any of our subsidiaries may exercise any voting or other rights granted to the holders of special stock following redemption.
Other Rights. Holders of special stock are not entitled to share in any distribution of assets in the event of any liquidation, dissolution or winding up of our affairs.
Trading . Our special stock is not listed on any stock exchange.
Preferred Stock
Our board of directors is authorized to fix the designations, rights, preferences, powers and limitations of and to issue each series of the preferred stock. Our board of directors has flexibility to create one or more series of preferred stock, from time to time, and to determine the relative designations, powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions of each series, including, without limitation:
· | the dividend rights, dividend rates and dividend periods (or the method of calculation); |
· | the purchase price; |
· | conversion or exchange rights; |
· | any voting rights; |
· | rights and terms of redemption (including sinking fund provisions) or repurchase; |
· | redemption price or prices; |
· | liquidation preferences of any such series; |
· | the number of shares in each series; |
· | the designation thereof; |
· | whether the shares of preferred stock will be listed on a securities exchange; |
· | any special U.S. federal income tax considerations; and |
· | any other powers, preferences and relative, participating, optional or other special rights, qualifications, limitations or restrictions. |
The consent of our Manager, as holder of shares of special stock, is required for issuances of preferred stock.
Preferred stock may be issued, at the discretion of our board of directors, for any proper corporate purpose, without further action by our shareholders other than as may be required by applicable law. Shareholders do not have preemptive rights with respect to the future issuance of shares of preferred stock and shareholders’ interest in us could be diluted by any such issuance with respect to any of the following: earnings per share, voting, liquidation rights and book and market value.
The issuance of shares of preferred stock could affect the relative rights of holders of common stock. Depending upon the exact terms, limitations and relative rights and preferences, if any of the shares of preferred stock as determined by the board of directors at the time of issuance, the holders of shares of preferred stock may be entitled to a higher dividend rate than that paid on the common stock, a prior claim on funds available for the payment of dividends, a fixed preferential payment in the event of liquidation and dissolution, redemption rights, rights to convert their shares of preferred stock into shares of common stock, and voting rights which would tend to dilute the voting control of the holders of shares of common stock. We could use preferred stock for potential strategic transactions, including, among other things, acquisitions, strategic partnerships, joint ventures, restructurings, business combinations and investments. We cannot provide assurances that any such transactions will (i) be consummated on favorable terms or at all, (ii) enhance shareholder value or (iii) not adversely affect our business or the trading price of common stock. Any shares of preferred stock could be issued with rights, preferences and privileges that may be superior to those of the common stock.
Our board of directors has represented that it will not, without prior shareholder approval, approve the issuance or use of preferred stock for any defensive or anti-takeover purpose or for the purpose of implementing any shareholder rights plan. Within these limits, as well as others imposed by applicable law and NYSE rules, the board of directors may approve the issuance or use of preferred stock for capital raising, financing and acquisition needs or opportunities that has the effect of making an acquisition of our Company more difficult or costly, as could also be the case if the board of directors were to issue additional common stock.
Forum Selection Clause
Our bylaws provide that, unless we consent in writing to the selection of an alternative forum, to the fullest extent permitted by law, the sole and exclusive forum for any stockholder (including any beneficial owner) to bring (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, or employees to us or to our stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or our certificate of incorporation or bylaws, (iv) any action to interpret, apply, enforce or determine the validity of our certificate of incorporation or bylaws or (v) any action asserting a claim governed by the internal affairs doctrine, will be the Court of Chancery of the State of Delaware. Any person or entity purchasing or otherwise acquiring or holding any interest in shares of our capital stock is deemed to have notice of and consented to the foregoing provisions.
Anti-Takeover Provisions
Certain provisions of the Management Services Agreement, our certificate of incorporation and our bylaws may make it more difficult for third parties to acquire control of us by various means. These provisions could deprive our shareholders of opportunities to realize a premium on the shares owned by them. In addition, these provisions may adversely affect the prevailing market price of the shares. These provisions are intended to:
· | protect the position of our Manager and its rights to manage our business and affairs under the Management Services Agreement; |
· | enhance the likelihood of continuity and stability in the composition of our board of directors and in the policies formulated by the board; |
· | discourage certain types of transactions which may involve an actual or threatened change in control of us; |
· | discourage certain tactics that may be used in proxy fights; |
· | encourage persons seeking to acquire control of us to consult first with our board of directors to negotiate the terms of any proposed business combination or offer; and |
· | reduce our vulnerability to an unsolicited proposal for a takeover that does not contemplate the acquisition of all of our outstanding shares or that is otherwise unfair to our shareholders. |
Anti-Takeover Effects of the Management Services Agreement
The limited circumstances in which our Manager may be terminated means that it will be very difficult for a potential acquirer to take over the management and operation of our business. Under the terms of the Management Services Agreement, our Manager may only be terminated by us in the following circumstances:
· | our shares underperform a weighted average of two benchmark utilities indices by more than 30% in relative terms and more than 2.5% in absolute terms in 16 out of 20 consecutive quarters prior to and including the most recent full quarter, and the holders of a minimum of 66 2/3% of our shares (excluding any shares owned by our Manager or any affiliate of our Manager) vote to remove our Manager; |
· | our Manager materially breaches the terms of the Management Services Agreement and such breach continues unremedied for 60 days after notice; |
· | our Manager acts with gross negligence, willful misconduct, bad faith or reckless disregard of its duties in carrying out its obligations under the Management Services Agreement or engages in fraudulent or dishonest acts; or |
· | our Manager experiences certain bankruptcy events. |
In addition to the limited circumstances in which our Manager can be terminated under the terms of the Management Services Agreement, the Management Services Agreement provides that in circumstances where our common stock ceases to be listed on a recognized U.S. national securities exchange as a result of the acquisition of our common stock by third parties in an amount that results in the common stock ceasing to meet the distribution and trading criteria on such exchange or market, our Manager has the option to either propose an alternate fee structure and remain our Manager or resign, terminate the Management Services Agreement upon 30 days’ written notice and be paid a substantial termination fee. The termination fee payable on our Manager’s exercise of its right to resign as our Manager subsequent to a delisting of our common stock could delay or prevent a change in control that may favor our shareholders. Furthermore, in the event of such a delisting, any proceeds from the sale, lease or exchange of a significant amount of assets must be reinvested in new assets of our Company, subject to debt repayment obligations. We will also be prohibited from incurring any new indebtedness or engaging in any transactions with our shareholders or our affiliates without the prior written approval of our Manager. These provisions could deprive our shareholders of opportunities to realize a premium on the shares owned by them.
Furthermore, upon resignation of our Manager and the termination of the Management Services Agreement, or within 30 days of a delisting of our shares unless otherwise agreed by our Manager, we and our subsidiaries will cease using the Macquarie brand entirely, including changing our names to remove any reference to “Macquarie.” Similarly, if our Manager’s appointment is terminated by us, we and our subsidiaries will cease using the Macquarie brand within 30 days of termination.
Anti-Takeover Provisions in the Certificate of Incorporation and Bylaws and Under Delaware Corporate Law
A number of provisions of our certificate of incorporation, bylaws and the DGCL also could have the effect of making it more difficult for a third party to acquire, or of discouraging a third party from acquiring, control of us.
Business Combinations. The certificate of incorporation prohibits the merger or consolidation of us with or into any limited liability company, corporation, trust or any other unincorporated business or the sale, lease or exchange of all or substantially all of our assets unless the board of directors adopts a resolution by a majority vote approving such action and unless such action is approved by the affirmative vote of a majority of the outstanding shares 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 an associate thereof.
We are subject to the provisions of Section 203 of the DGCL.
Section 203 prohibits an “interested stockholder” from engaging in a “business combination” with a Delaware corporation for three years following the date such person became an interested stockholder, unless:
· | prior to the date such person became an interested stockholder, the board of directors of the corporation approved the transaction in which the interested stockholder became an interested stockholder or approved the business combination; |
· | upon consummation of the transaction that resulted in the interested stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding stock held by directors who are also officers of the corporation and stock held by certain employee stock plans; or |
· | on or subsequent to the date of the transaction in which such person became an interested stockholder, the business combination is approved by the board of directors of the corporation and authorized at a meeting of shareholders by the affirmative vote of the holders of at least two-thirds of the outstanding voting stock of the corporation not owned by the interested stockholder. |
Section 203 defines a “business combination” to generally include:
· | any merger or consolidation involving the corporation and an interested stockholder; |
· | any sale, transfer, pledge or other disposition involving an interested stockholder of 10% or more of the assets of the corporation; |
· | subject to certain exceptions, any transaction which results in the issuance or transfer by the corporation of any stock of the corporation to an interested stockholder; |
· | any transaction involving the corporation which has the effect of increasing the proportionate share of any class or series of stock of the corporation beneficially owned by the interested stockholder; or |
· | the receipt by an interested stockholder of any loans, guarantees, pledges or other financial benefits provided by or through the corporation. |
Section 203 generally defines an “interested stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by such entity or person.
The certificate of incorporation provides that we shall not merge or consolidate with any other entity or sell, lease or exchange its property and assets, unless the board of directors adopts a resolution approving such action by the affirmative vote of at least a majority of the total number of directors then in office and an affirmative vote of the shareholders holding a majority of the voting power of our issued and outstanding shares of stock. Any shares held by the Manager or its affiliate or associate will not be entitled to vote on approval of any merger or consolidation with or into, or sale, lease or exchange to, the Manager or its affiliate or associate.
The certificate of incorporation also provides that the affirmative vote of at least 66 2/3% of our outstanding shares of stock (excluding shares held by an “interested stockholder” (as defined in the certificate of incorporation) or any of its affiliates or associate) is required to approve any “business combination” (as defined in the certificate of incorporation). Such affirmative vote is required notwithstanding any law or agreement with any securities exchange or otherwise. The “continuing directors” (as defined in the certificate of incorporation) will determine, on the basis of information known to them after reasonable inquiry, all facts necessary to determine compliance with the provisions relating to certain business combinations and transactions, including, without limitation, (a) whether a person is an interested stockholder, (b) the number of shares of our stock beneficially owned by any person, (c) whether a person is an affiliate or associate of another and (d) the “fair market value” (as defined in the certificate of incorporation) of our equity securities or any of our subsidiaries.
Vacancies; Acting by Written Consent. Subject to the right of our Manager as holder of the special stock to elect one director and his or her successor in the event of a vacancy, the certificate of incorporation authorizes only our board of directors to fill vacancies, including for newly created directorships. This provision could prevent a shareholder of ours from effectively obtaining an indirect majority representation on our board of directors by permitting the existing board to increase the number of directors and to fill the vacancies with its own nominees.
Except as otherwise provided in the certificate of incorporation, holders of our shares are not permitted to act by written consent. Instead, shareholders may only take action via proxy, which may be presented at a duly called annual or special meeting of our shareholders. Furthermore, the certificate of incorporation provides that special meetings may only be called by the chairman of our board of directors or by resolution adopted by our board of directors.
Nomination and Proposal Procedures. Our bylaws provide that shareholders seeking to bring business before an annual meeting of members or to nominate candidates for election as directors at an annual meeting of shareholders of our Company must provide notice thereof in writing to us not less than 120 days and not more than 150 days prior to the anniversary date of our preceding year’s annual meeting. In addition, the shareholder furnishing such notice must be a shareholder of record on both (1) the date of delivering such notice and (2) the record date for the determination of shareholders entitled to vote at such meeting. The bylaws specify certain requirements as to the form and content of a shareholder’s notice. These provisions may preclude shareholders from bringing matters before an annual meeting or from making nominations for directors at an annual or special meeting. To deliver timely notice of a nomination for a special meeting of shareholders, a shareholder must submit such written notice at least 120 days but not more than the later of the 90 th day prior to such special meeting or the 10 th day following the day on which public announcement is first made of the special meeting date and of the proposed nominees.
Future Issuances of Common Stock. Authorized but unissued shares of common stock are available for future issuance, without approval of our shareholders. These additional shares may be utilized for a variety of purposes, including acquisitions, compensation and incentive plans and future public or private offerings to raise additional capital. One of the effects of the existence of such unissued shares may be to enable the board of directors to discourage or prevent a potential acquisition or takeover (by means of a tender or exchange offer, proxy contest or otherwise) and thereby to protect the continuity of the management.
Removal Procedures. Our certificate of incorporation provides that any director may be removed for cause by the affirmative vote of the holders of at least 66 2/3% of the voting power of the issued and outstanding shares of common stock, special stock and preferred stock, if any, voting together as a single class. Any director elected by the holders of common stock, voting separately as a class, may be removed from office at any time, without cause, solely by the affirmative vote of at least 66 2/3% of the voting power of the issued and outstanding shares of common stock voting separately as a separate class. Any director elected by the holders of special stock, voting or consenting separately as a class, may be removed from office at any time, without cause, solely by the affirmative vote or written consent of the holders of at least 66 2/3% of the voting power of the issued and outstanding shares of special stock voting separately as a separate class.
Rights Plan. Although we do not have a shareholder rights plan, under Delaware law, the board of directors could adopt such a plan without shareholder approval. If adopted, a shareholder rights plan could operate to cause substantial dilution to a person or group that attempts to acquire us on terms not approved by the board of directors.
Amendment of Certificate of Incorporation and Bylaws . Our board of directors has broad authority, subject to the limitations described below, to amend the certificate of incorporation and bylaws. The board, with shareholder approval if required, could in the future choose to amend the certificate of incorporation or bylaws to include other provisions which have the intention or effect of discouraging takeover attempts. Under the DGCL, the certificate of incorporation may be amended by an affirmative vote of a majority of the directors then in office and a majority of the outstanding stock and entitled to vote thereon. The certificate of incorporation and the bylaws provide that the board of directors may amend the bylaws by resolution adopted by the affirmative vote of a majority of the total number of directors then in office, subject to limitations under Delaware law. The provisions of the bylaws related to replacement managers and amendments may not be amended without the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at a meeting of shareholders. For so long as the Management Services Agreement is in effect, the provisions of the bylaws related to appointment of the chairman of the board of directors, management and amendments may not be amended without the prior written consent of our Manager.