EXHIBIT 99.4
EXECUTION
VERSION
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REGISTRATION RIGHTS AGREEMENT
AMONG
MACQUARIE INFRASTRUCTURE COMPANY LLC,
MACQUARIE INFRASTRUCTURE COMPANY TRUST
AND
MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC.
Dated as of December 21, 2004
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This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
December 21, 2004, is among Macquarie Infrastructure Company LLC, a Delaware
limited liability company (the "LLC"), Macquarie Infrastructure Company Trust, a
Delaware statutory trust (the "Trust" and, together with the LLC, the
"Company"), and Macquarie Infrastructure Management (USA) Inc., a Delaware
corporation (the "Manager"), and a holder of Trust Stock (as defined below).
RECITALS
WHEREAS, the Company has resolved to issue and sell in an
underwritten registered initial public offering up to a determined number of
shares representing beneficial interests in the Trust;
WHEREAS, pursuant to the terms of a Management Services Agreement
(the "Management Services Agreement") dated as of the date hereof among the
Manager, the LLC, Macquarie Infrastructure Company Inc. and certain directly
wholly owned subsidiaries of the LLC (each, a "Managed Subsidiary"; together,
the "Managed Subsidiaries"), the LLC and each Managed Subsidiary have agreed to
appoint the Manager to manage their respective businesses and affairs as therein
described;
WHEREAS, in connection with the formation of the Trust and the
Company, the Manager purchased one hundred (100) shares of Trust Stock (the
"Formation Shares");
WHEREAS, the Manager has agreed to purchase from the LLC, in a
separate private placement closing concurrently with the Offering (defined
below), 2,000,000 of shares of Trust Stock having an aggregate purchase price of
$50 million (the "Manager's Private Placement"), at a per share price equal to
the initial public offering price, consisting of (i) 1,400,000 of shares of
Trust Stock comprising 70% of the Manager's Private Placement (the "Initial
Investment") and (ii) 600,000 shares of Trust Stock comprising 30% of the
Manager's Private Placement (the "Additional Initial Investment").
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 LLC and the Managed Subsidiaries, from
time to time, in Trust Stock in accordance with the terms therein (each, a
"Management Fee Investment"; together, the "Management Fee Investments");
WHEREAS, as a condition to the Manager's obligation to purchase
shares of Trust Stock in the Initial Investment and the Additional Initial
Investment, the Company has agreed to enter into this Agreement;
WHEREAS, the Company desires to provide the Manager with the rights
set forth herein in order to induce the Manager to make Management Fee
Investments; and
WHEREAS, the parties hereto desire to enter into this Agreement with
respect to certain rights and obligations of the Manager in connection with its
ownership of the Trust Stock.
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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" shall have the meaning set forth in
the Recitals hereto.
"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.
"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 Registration Statement,
the period commencing from the time such 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.
"Formation Shares" shall have the meaning set forth in the Recitals
hereto.
"Initial Investment" shall have the meaning set forth in the
Recitals hereto.
"LLC Agreement" means the Amended and Restated Operating Agreement
of Macquarie Infrastructure Company LLC dated as of the date hereof.
"LLC Interest" means a limited liability company interest in the
Company with the terms specified in the LLC Agreement.
"Managed Subsidiary" shall have the meaning set forth in the
Recitals hereto.
"Management Fee Investment" shall have the meaning set forth in the
Recitals hereto.
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"Management Services Agreement" shall have the meaning set forth in
the Recitals hereto.
"Manager's Private Placement" shall have the meaning set forth in
the Recitals hereto.
"Material Event" shall have the meaning set forth in Section
4.1(iv).
"NASD" means the National Association of Securities Dealers, Inc.
"Notice and Questionnaire" shall have the meaning set forth in
Section 2.3.
"Offering" means the initial public offering of the Trust Stock by
the Company.
"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.
"Public Offering" means the closing of a firm commitment,
underwritten registered public offering of the Trust Stock (following the
Offering and other than an offering covered by a registration statement
relating solely to a sale of securities of the Company pursuant to a stock
purchase or other equity plan or a transaction within the scope of Rule
145 promulgated under the Securities Act).
"Registrable Shares" means (i) at any time from and after the
closing of the Offering, the Formation Shares and all shares of Trust
Stock purchased by the Manager as the Additional Initial Investment, (ii)
at any time from and after the date that is the first anniversary of the
closing of the Offering, 50% of the number of shares of Trust Stock
purchased by the Manager as the Initial Investment, (iii) at any time from
and after the third anniversary of such closing, the balance of such
shares of Trust Stock purchased by the Manager as the Initial Investment
and (iv) at any time from and after the closing of the Offering, the
number of shares of Trust Stock purchased by the Manager in connection
with Management Fee Investments, all shares of Trust Stock purchased by
the Manager as the Additional Initial Investment; provided, however, that
Registrable Shares shall not include any shares of Trust 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.
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"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, 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.
"Trust Stock" means the shares of beneficial interest of the Trust;
provided that in the event that all outstanding shares of beneficial
interest of the Trust are exchanged for LLC Interests in accordance with
the terms of the LLC Agreement, all references herein to "Trust Stock" or
"Shares of Trust Stock" shall automatically be deemed to refer to LLC
Interests upon such exchange.
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
REGISTRATION UNDER THE SECURITIES ACT
2.1 The Company agrees to file under the Securities Act, as soon as
reasonably possible after the first anniversary of the closing of the Offering
or, with respect to the offer and sale of the Formation Shares, the Additional
Initial Investment or any Management Fee Investments, at such earlier time as
the Manager reasonably requests, a Shelf Registration Statement (the "Initial
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 the Registrable Shares it owns on such filing date, pursuant to Rule
415 or any similar rule that may be adopted by the Commission. The Company
agrees to use its best efforts to cause the Initial Shelf Registration Statement
to become or be declared effective as soon as possible after the filing of the
Initial Shelf Registration Statement and to keep the Initial Shelf Registration
Statement continuously effective throughout the Effective Period subject to
Section 4.2.
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 file one or more
subsequent Shelf Registration Statements (each, a "Subsequent Shelf Registration
Statement") (which may include Registrable Securities 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;
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provided, however, that the Company shall not be obligated to file more than
four (4) such subsequent Shelf Registration Statements in any twelve-month
period. The Company agrees to use its best efforts to cause each Subsequent
Shelf Registration Statement to become or be declared effective as soon as
possible after the filing of the Subsequent Shelf Registration Statement and to
keep the Subsequent Shelf Registration Statement continuously effective
throughout the Effective Period subject to Section 4.2.
The Manager shall be named as a selling security holder in such
Shelf Registration Statement and the related Prospectus in such a manner as to
permit the Manager to deliver such Prospectus 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 such amendment or 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 the case of the related Prospectus, 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.
2.3 The Manager agrees that if it wishes to sell Registrable Shares
pursuant to a Shelf Registration Statement and related Prospectus, 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.
SECTION 3
PIGGYBACK REGISTRATION
3.1 Right to Piggyback.
(a) Subject to the terms and conditions hereof, at any time after
the closing of the Offering, whenever the Company proposes to register, either
for its own account or the account of a security holder or holders, any shares
of Trust 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 (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 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.
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(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
relating solely to stock purchase or other equity plans, (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-2, S-3, SB-1 or SB-2, or their
successor forms) that does not include substantially the same information as
would be required to be included in a Shelf Registration Statement covering a
registration pursuant to Section 2 above.
(c) The Company shall have the right to terminate or withdraw any
Company Registration Statement initiated by it under this Section 3 prior to the
effectiveness of such Company Registration Statement, whether or not the Manager
has elected to include securities in such Company Registration Statement.
3.2 Underwriting.
If the Company Registration Statement 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 pursuant to this
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 and underwriting. In the event of
any such limitation of the number of shares of Trust Stock to be underwritten,
the Company shall so advise the Manager, and the number of shares included in
such Company Registration Statement 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.
SECTION 4
REGISTRATION PROCEDURES
The following provisions shall apply to any Registration Statement
filed pursuant to Sections 2 and 3 hereof.
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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 and 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 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;
(iii) (A) prepare and file with the Commission such amendments and
post-effective amendments 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 (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
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;
(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, 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 each Registration Statement,
by the Commission or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of a
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
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 Prospectus supplement to update the
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Prospectus or a Form 8-K or other appropriate Exchange Act report that is
incorporated by reference into a Registration Statement, which, in either
case, contains the requisite information with respect to such Material
Event that results in such Registration Statement 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 is required to be delivered under the Securities Act, that a
Registration Statement, Prospectus, Prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the rules and
regulations of the Commission thereunder;
(v) prior to any public offering of the Registrable Shares pursuant
to a Registration Statement, 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, 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; 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 a Registration Statement, 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
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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 Prospectus supplement or post-effective amendment to a Registration
Statement 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 Prospectus supplement 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;
(x) promptly furnish to the Manager, upon its request and without
charge, at least one (1) conformed copy of each Registration Statement 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, without charge, as many copies of the Prospectus relating to
such Registrable Shares (including each preliminary Prospectus) 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 or each amendment or
supplement thereto by the Manager in connection with any offering and sale
of the Registrable Shares covered by such Prospectus 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 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
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file a post-effective amendment to such Registration Statement or a supplement
to the related Prospectus or any document incorporated therein by reference or
file any other required document that would be incorporated by reference into
such Registration Statement and Prospectus 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 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 a Registration Statement 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 until the Manager's
receipt of copies of the supplemented or amended Prospectus provided for in
clause (A) above, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company will use its best efforts to ensure that the use
of the Prospectus 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.
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
applicable to such Registrable Shares until the Manager (i) shall have received
copies of such amended or supplemented Prospectus 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
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 may continue.
4.4 The Company may require the Manager in connection with the
Registrable Shares as to which any Registration Statement 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 relating to such Registration
Statement 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
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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 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.
4.6 The Company shall provide CUSIP numbers for all Registrable
Shares covered by a Registration Statement no later than the effective date of
such Registration Statement.
4.7 The Company and the Manager shall provide such information as is
required for any filings required to be made with the NASD.
4.8 From the period beginning with the termination of the Management
Services Agreement and ending two years 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.
4.10 Upon (i) the filing of the Initial Shelf Registration Statement
and (ii) the effectiveness of the Initial Shelf Registration Statement, the
Company shall issue a press release to announce the same.
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 to receive a Prospectus 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 under applicable law or pursuant to
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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 without delivering, or causing to be delivered, a
Prospectus 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. In the absence of a response, the Company may assume
that all of the Manager's Registrable Shares were so sold.
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 NASD 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 a Registration Statement, the related
Prospectus, 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 Trust 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, 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
13
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 thereof, or in
any preliminary Prospectus or the Prospectus, or in any Registration Statement,
or amendment thereof or supplement thereto, 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, 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 thereof, preliminary Prospectus
or Prospectus. 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.
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
thereof, or in any preliminary Prospectus or the Prospectus, 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
14
Prospectus or the Prospectus, 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 thereof, preliminary Prospectus or Prospectus,
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.
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,
15
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.
(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 Trust 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
16
(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.
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 the number of shares
equal to the number of shares acquired by the Manager in the Additional Initial
Investment (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 LLC
Agreement 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, 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
17
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):
(a) If to the Company:
Macquarie Infrastructure Company LLC
600 Fifth Avenue, 21st Floor
New York, New York 10020
Facsimile: (212) 581-8037
Attention: David Mitchell
(b) If to the Manager:
Macquarie Infrastructure Management (USA) Inc.
600 Fifth Avenue, 21st Floor
New York, New York 10020
Facsimile: (212) 581-8037
Attention: Stephen Peet
(c) If to the Trust:
Macquarie Infrastructure Company Trust
600 Fifth Avenue, 21st Floor
New York, New York 10020
Facsimile: (212) 581-8037
Attention: Peter Stokes
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
18
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.
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.
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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.
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 they deem such enforcement
necessary or advisable to protect its rights.
20
IN WITNESS WHEREOF, the parties hereto have each executed this
Registration Rights Agreement as of the date first written above.
THE LLC:
MACQUARIE INFRASTRUCTURE COMPANY LLC
/s/ David M. Mitchell
______________________________
Name: David M. Mitchell
Title: Chief Financial Officer
THE TRUST:
MACQUARIE INFRASTRUCTURE COMPANY TRUST
/s/ Peter Stokes
______________________________
Name: Peter Stokes
Title: Regular Trustee
THE MANAGER:
MACQUARIE INFRASTRUCTURE MANAGEMENT
(USA) INC.
/s/ John B. Mullin
______________________________
Name: John B. Mullin
Title: Secretary/Treasurer
SCHEDULE 1
FORM OF NOTICE AND QUESTIONNAIRE
SHARES OF TRUST STOCK OF
MACQUARIE INFRASTRUCTURE COMPANY TRUST
Macquarie Infrastructure Management (USA) Inc. (the "Manager"),
beneficial holder of [_______] shares of beneficial interest (the "Registrable
Shares") of Macquarie Infrastructure Company Trust (the "Trust"), understands
that Macquarie Infrastructure Company LLC (the "LLC", and together with the
Trust, the "Company") and the Trust have filed or intend to file with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
of the Registrable Shares in accordance with the terms of the Trust Stock
Registration Rights Agreement (the "Registration Rights Agreement") to be dated
as of [______], 2004 between the Company and the Manager. 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 Shelf
Registration Statement, the Manager generally will be required to be named as a
selling security holder in the related Prospectus and to deliver 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 and therefore
will not be permitted to sell any Registrable Shares pursuant to a Shelf
Registration Statement. Upon receipt of a completed Notice and Questionnaire
from the Manager following the effectiveness of any Shelf Registration
Statement, the Company will, as promptly as practicable but in any event within
five Business Days of such receipt, file such amendments to the Shelf
Registration Statement or supplements to the related Prospectus as are necessary
to permit the Manager to deliver such Prospectus to purchasers of Registrable
Shares.
Certain legal consequences arise from being named as a selling
security holder in the 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 Shelf Registration Statement and the related Prospectus.
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 a
Shelf Registration Statement. The Manager, by signing and returning this Notice
and Questionnaire, understands that it will be
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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 a Shelf Registration Statement or the related
Prospectus in reliance upon the information provided in this Notice and
Questionnaire.
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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 COMPANY LLC AT:
600 Fifth Avenue, 21st Floor
New York, New York 10020
Attention: Peter Stokes
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.: _____________________________________________________
(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.
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2. Address for notices to Manager:
600 Fifth Avenue, 21st Floor
New York, New York 10020
Telephone, including area code: [________]
Fax, including area code: (212) 581-8037
Contact Person:
3. Beneficial ownership of Registrable Shares:
(a) Number of Registrable Shares beneficially owned:
_____ shares of beneficial interest of Macquarie Infrastructure
Company Trust
(b) CUSIP No(s). of such Registrable Shares beneficially owned:
____________________________________________________________________
____________________________________________________________________
4. Beneficial Ownership of the Trust 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 TRUST STOCK OTHER THAN THE
REGISTRABLE SHARES LISTED ABOVE IN ITEM (3).
(a) Type and Amount of other shares of Trust Stock beneficially owned by
the Manager:
____________________________________________________________________
____________________________________________________________________
(b) CUSIP No(s). of such other shares of Trust 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: ___________________________________________________________
____________________________________________________________________
____________________________________________________________________
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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 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.
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 a
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 Shelf Registration Statement, the Manager agrees to promptly notify the
Company of any inaccuracies or changes in
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the information provided herein that may occur subsequent to the date hereof at
any time while a 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 a 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 a Shelf Registration
Statement and the related Prospectus.
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:
Dated:
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