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Exhibit 3.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
DATED AS OF OCTOBER 17, 2002
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
ENBRIDGE ENERGY MANAGEMENT, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions................................................1
Section 1.02. Rules of Construction......................................7
ARTICLE II
ORGANIZATION
Section 2.01. Formation and Continuation.................................8
Section 2.02. Name.......................................................8
Section 2.03. Registered Office; Registered Agent; Principal Office;
Other Offices..............................................8
Section 2.04. Purpose; Powers............................................9
Section 2.05. Foreign Qualification......................................9
Section 2.06. Power of Attorney..........................................9
Section 2.07. Term......................................................10
Section 2.08. Taxation as Corporation; No State-Law Partnership.........10
Section 2.09. Title to Company Assets...................................10
ARTICLE III
SHAREHOLDERS; CERTIFICATES;
TRANSFER OF COMPANY SECURITIES
Section 3.01. Shareholders..............................................11
Section 3.02. No Liability to Third Parties.............................11
Section 3.03. No Resignation or Expulsion...............................11
Section 3.04. Certificates..............................................11
Section 3.05. Register, Registration of Transfer and Exchange...........12
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates.........13
ARTICLE IV
AUTHORIZATION AND ISSUANCE OF COMPANY SECURITIES
Section 4.01. Company Securities........................................14
Section 4.02. Voting Shares.............................................15
Section 4.03. Listed Shares.............................................18
Section 4.04. Splits and Combinations...................................21
Section 4.05. Withholding...............................................21
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ARTICLE V
MANAGEMENT
Section 5.01. Management of the Company's Affairs.......................22
Section 5.02. Board of Directors........................................22
Section 5.03. Restrictions on the Board of Directors' Authority.........24
Section 5.04. Committees................................................24
Section 5.05. Officers..................................................25
Section 5.06. Compensation..............................................27
Section 5.07. Business Opportunities....................................27
Section 5.08. Interested Officers or Directors..........................28
Section 5.09. Resolutions of Conflicts of Interest......................28
Section 5.10. Duties of Record Holders of Voting Shares and Directors...29
Section 5.11. Indemnification...........................................29
Section 5.12. Liability of Indemnitees..................................31
Section 5.13. Facsimile Signatures......................................32
ARTICLE VI
BOOKS AND RECORDS;
INFORMATION AND ACCOUNTS
Section 6.01. Maintenance of Books and Records..........................32
Section 6.02. Information...............................................32
Section 6.03. Accounts..................................................33
ARTICLE VII
DISSOLUTION, WINDING-UP AND TERMINATION; CERTAIN MERGERS
Section 7.01. Dissolution...............................................33
Section 7.02. Winding-Up and Termination................................33
Section 7.03. Merger Relating to Change in Tax Status...................34
ARTICLE VIII
AMENDMENT OF AGREEMENT;
SHAREHOLDER MEETINGS; RECORD DATE
Section 8.01. Amendment Procedures......................................35
Section 8.02. Meetings..................................................35
Section 8.03. Notice of a Meeting.......................................36
Section 8.04. Record Date...............................................36
Section 8.05. Adjournment...............................................36
Section 8.06. Waiver of Notice; Approval of Meeting; Approval of Minutes36
Section 8.07. Quorum; Voting............................................36
Section 8.08. Conduct of Meeting........................................37
Section 8.09. Action Without a Meeting..................................37
Section 8.10. Voting and Other Rights...................................38
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ARTICLE IX
COVENANTS
Section 9.01. Covenants.................................................38
ARTICLE X
GENERAL PROVISIONS
Section 10.01. Fiscal Year...............................................39
Section 10.02. Offset....................................................39
Section 10.03. Notices...................................................39
Section 10.04. Entire Agreement..........................................39
Section 10.05. Waiver....................................................39
Section 10.06. Binding Effect............................................39
Section 10.07. Governing Law; Severability...............................39
Section 10.08. Further Action............................................40
Section 10.09. No Right to Action for Dissolution or Partition...........40
Section 10.10. Third-Party Beneficiaries.................................40
Section 10.11. Creditors.................................................40
Section 10.12. Counterparts..............................................40
ANNEX A - Purchase Provisions
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
ENBRIDGE ENERGY MANAGEMENT, L.L.C.
This Amended and Restated Limited Liability Company Agreement of Enbridge
Energy Management, L.L.C., a Delaware limited liability company (the "COMPANY"),
dated as of October 17, 2002, is agreed to by and among Enbridge Energy Company,
Inc., a Delaware corporation (the "ORGANIZATIONAL Shareholder"), and any other
Persons (as defined below) who become Shareholders (as defined below) of the
Company or parties hereto as provided herein.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this Agreement, except as defined
otherwise in the Purchase Provisions (within each of which the definitions in
which shall control), the following terms shall have the following respective
meanings:
"ACT" means the Delaware Limited Liability Company Act, as amended from
time to time, and any successor to such statute.
"AFFILIATE" means, with respect to any Person, any other Person that
directly or indirectly controls, is controlled by or is under common control
with, the Person in question. As used in this definition of "AFFILIATE," the
term "CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.
"AGREEMENT" means this Amended and Restated Limited Liability Company
Agreement, including the Purchase Provisions, as amended, supplemented or
restated from time to time.
"ASSIGNEE" means a Person to whom one or more Company Securities have been
transferred in a manner permitted under this Agreement.
"AUDIT COMMITTEE" has the meaning assigned to such term in Section
5.04(c).
"AVERAGE MARKET PRICE" means, except as otherwise provided in the Purchase
Provisions, the average of the daily Closing Prices per Listed Share during the
ten consecutive Trading Days prior to the date on which the Listed Shares begin
to trade ex-dividend, but not including that date. For the purpose of this
definition, the "date on which the Listed Shares begin to trade ex-dividend"
means the date on which "EX-DIVIDEND" trading commences for a Share Distribution
on the principal National Securities Exchange on which the Listed Shares are
then listed or admitted to trading.
"BANKRUPTCY" or "BANKRUPT" means, with respect to any Person, that (a)
such Person (i) makes a general assignment for the benefit of creditors; (ii)
files a voluntary petition in bankruptcy; (iii) is insolvent or has entered
against such Person an order for relief in any
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bankruptcy or insolvency proceeding; (iv) files a petition or answer seeking for
such Person any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any Law; (v) files an answer or
other pleading admitting or failing to contest the material allegations of a
petition filed against such Person in a proceeding of the type described in
subclauses (i) through (iv) of this clause (a); or (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of such
Person or of all or any substantial part of such Person's properties; or (b) 120
days have passed after the commencement of any proceeding seeking
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any Law, if the proceeding has not been dismissed, or 90
days have passed after the appointment without such Person's consent or the
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of such Person's properties, if the appointment is not
vacated or stayed, or 90 days have passed after the date of expiration of any
such stay, if the appointment has not been vacated.
"BENEFICIAL OWNER" has the meaning set forth in Rules 13d-3 and 13d-5
under the Exchange Act, as in effect on the date of this Agreement, and the
terms "BENEFICIAL OWNERSHIP," "BENEFICIALLY OWN," "BENEFICIALLY OWNED" and
similar terms have correlative meanings.
"BOARD OF DIRECTORS" has the meaning assigned to such term in Section
5.01(a).
"CERTIFICATE OF MERGER" means any certificate of merger or similar
document filed with any Secretary of State or similar governmental authority
pursuant to the Act or any other applicable Law in connection with a merger of
the Company pursuant to Section 7.03.
"CERTIFICATES" has the meaning assigned to such term in Section 3.04(a).
"CHAIRMAN OF THE BOARD" has the meaning assigned to such term in Section
5.02(g).
"CLASS A COMMON UNIT" has the meaning assigned to such term in the
Partnership Agreement.
"CLOSING PRICE" means (a) for securities that are listed on a National
Securities Exchange, the last sale price for that day, regular way, or, if there
are no sales on that day, the average of the closing bid and asked prices for
that day, regular way, in either case as reported in the principal composite
transactions reporting system for the principal National Securities Exchange on
which the securities are listed; or (b) for securities that are not listed on a
National Securities Exchange, (i) the last quoted price on that day, or if no
price is quoted, the average of the high bid and low asked prices on that day,
each as reported by the National Association of Securities Dealers Automated
Quotation System; (ii) if on that day the securities are not so quoted, the
average of the closing bid and asked prices on that day furnished by a
professional market maker in the securities selected by the Board of Directors
in its sole discretion; or (iii) if on that day no market maker is making a
market in the securities, the fair value of the securities as determined by the
Board of Directors in its sole discretion.
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"CODE" means the United States Internal Revenue Code of 1986, as amended
from time to time and as interpreted by the applicable regulations thereunder.
All references herein to a specific section or sections of the Code shall be
deemed to include a reference to any corresponding provision or provisions of
future Law.
"COMMON UNIT" has the meaning assigned to such term in the Partnership
Agreement.
"COMPANY" means Enbridge Energy Management, L.L.C., a Delaware limited
liability company.
"COMPANY SECURITIES" means any equity securities of the Company and
includes Voting Shares, Listed Shares and any other series or class of equity
securities that may be approved in accordance with Section 4.01(a), as the
context requires.
"DELEGATION OF CONTROL AGREEMENT" means the Delegation of Control
Agreement dated as of October 17, 2002 among the Organizational Shareholder, the
Partnership and the Company, as amended, supplemented or restated from time to
time.
"DGCL" means the General Corporation Law of the State of Delaware, as
amended from time to time, and any successor to such statute.
"DIRECTOR" means a member of the Board of Directors elected as provided in
Section 5.02, but such term does not include any Person who has ceased to be a
member of the Board of Directors.
"DISPOSE", "DISPOSING" or "DISPOSITION" means, with respect to any Company
Security, a sale, assignment, transfer, conveyance, gift, exchange or other
disposition of such Company Security, whether such disposition be voluntary,
involuntary or by operation of Law, including the following: (a) in the case of
a Company Security owned by a natural person, a transfer of such Company
Security upon the death of its owner, whether by will, intestate succession or
otherwise; (b) in the case of a Company Security owned by an entity, (i) a
merger or consolidation of such entity (other than where such entity is the
survivor thereof), (ii) a conversion of such entity into another type of entity,
or (iii) a distribution of such Company Security, including in connection with
the dissolution, liquidation, winding-up or termination of such entity (unless,
in the case of dissolution, such entity's business is continued without the
commencement of liquidation or winding-up); and (c) a disposition in connection
with, or in lieu of, a foreclosure of an Encumbrance, but such terms shall not
include the creation of an Encumbrance.
"DISSOLUTION EVENT" has the meaning assigned to such term in Section
7.01(a).
"ENBRIDGE INC." means Enbridge Inc., a Canadian corporation, and its
successor by merger, consolidation or acquisition of all or substantially all
of its assets.
"ENCUMBRANCE" means the creation of a security interest, lien, pledge,
mortgage or other encumbrance, whether such encumbrance be voluntary,
involuntary or by operation of Law.
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"ENTITY" means a corporation, limited liability company, joint venture,
partnership, trust, unincorporated organization, association or other entity.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended from time to time, and any successor to such statute and all rules and
regulations promulgated thereunder.
"GROUP" means a "GROUP" of Persons as defined in Section 13(d)(3) of the
Exchange Act.
"I-UNIT" has the meaning assigned to such term in the Partnership
Agreement.
"INDEMNITEES" means (a) the Record Holders of Voting Shares; (b) any
Person who is or was an Affiliate of the Record Holders of Voting Shares; (c)
any Person who is or was an officer, director, employee, partner, agent or
trustee of the Record Holders of Voting Shares, the Company or any of their
respective Affiliates; or (d) any Person who is or was serving at the request of
the Record Holders of Voting Shares, the Company or any of their respective
Affiliates as a director, officer, employee, partner, agent or trustee of
another Person.
"INITIAL PUBLIC OFFERING" means the consummation of the first underwritten
public offering of Listed Shares pursuant to an effective registration statement
filed under the Securities Act, as underwritten by the Underwriters pursuant to
the Underwriting Agreement.
"LAW" means any applicable constitutional provision, statute, act, code
(including the Code), law, regulation, rule, ordinance, order, decree, ruling,
proclamation, resolution, judgment, decision, declaration or interpretative or
advisory opinion or letter of a governmental authority, and includes any
applicable rule of any National Securities Exchange on which Company Securities
are traded or listed.
"LIQUIDATOR" has the meaning assigned to such term in Section 7.02(a).
"LISTED SHARE" has the meaning assigned to such term in Section 4.01(a).
"MERGER AGREEMENT" means any agreement and plan of merger or similar
agreement entered into by the Company in connection with any merger pursuant to
Section 7.03.
"NATIONAL SECURITIES EXCHANGE" means an exchange registered with the
Securities and Exchange Commission under Section 6(a) of the Exchange Act.
"OFFICER" means any Person elected as an officer of the Company as
provided in Section 5.05, but such term does not include any Person who has
ceased to be an officer of the Company.
"OMNIBUS AGREEMENT" means the Omnibus Agreement, dated as of October 17,
2002, among Enbridge Inc., Enbridge Energy Company, Inc. and the Partnership,
which specifies, among other things, certain business opportunities in which
Enbridge Energy Company, Inc. and its Affiliates are prohibited from engaging.
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"OPINION OF COUNSEL" means a written opinion of counsel (who may be
regular counsel to the Company or any Affiliate thereof) acceptable to the Board
of Directors, any committee thereof or any Officer.
"ORGANIZATIONAL CERTIFICATE" has the meaning assigned to such term in
Section 2.01.
"ORGANIZATIONAL SHAREHOLDER" means Enbridge Energy Company, Inc., a
Delaware corporation.
"OUTSTANDING" means, with respect to any Company Securities, all Company
Securities that are issued by the Company and reflected as outstanding on the
books and records of the Company (including the Transfer Agent) as of the date
of determination, excluding Company Securities held in treasury; PROVIDED,
HOWEVER, that any Listed Shares that are Beneficially Owned by any Person or
Group, excluding the Record Holders of Voting Shares and their Affiliates, shall
not be entitled to vote on any matter and shall not be considered to be
Outstanding when sending notices of a meeting of Record Holders of Outstanding
Company Securities to vote on any matter (unless otherwise required by Law),
calculating required votes, determining the presence of a quorum or for other
similar purposes under this Agreement, including the Purchase Provisions, the
Delegation of Control Agreement or the Tax Indemnification Agreement if the sum
of the number of Listed Shares Beneficially Owned by such Person or Group plus
the number of Common Units Beneficially Owned by such Person or Group equals 20%
or more of the sum of the aggregate number of Listed Shares that are issued by
the Company and reflected as Outstanding as of the date of determination, plus
the aggregate number of Common Units that are issued by the Partnership and
reflected as outstanding on the books and records of the Partnership (including
any transfer agent) as of the date of determination, but not including Common
Units held in treasury.
"PARTNERSHIP" means Enbridge Energy Partners, L.P., a Delaware limited
partnership.
"PARTNERSHIP AGREEMENT" means the Third Amended and Restated Agreement of
Limited Partnership of the Partnership dated as of October 17, 2002, as amended,
supplemented or restated from time to time.
"PERSON" means a natural person or an Entity.
"PRIOR AGREEMENT" means the Limited Liability Company Agreement of the
Company dated as of May 14, 2002.
"PURCHASE PROVISIONS" means the Purchase Provisions executed and adopted
by Enbridge Inc. and attached hereto as Annex A, as amended, supplemented or
restated from time to time, which are an integral part of this Agreement.
"RECORD DATE" means the date established by the Board of Directors for
determining (a) the identity of the Record Holders entitled to notice of, or to
vote at, any meeting of the Shareholders or entitled to vote by ballot or give
approval of a Company action in writing without a meeting or entitled to
exercise rights in respect of any lawful action of the
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Shareholders, (b) the identity of the Record Holders entitled to notice with
respect to any other matter, or (c) the identity of the Record Holders entitled
to receive any distribution, including a Share Distribution.
"RECORD HOLDER" means the Person in whose name a Company Security is
registered on the books and records of the Company or the Transfer Agent as
contemplated in Section 3.05.
"RESIGN" or "RESIGNATION" means the resignation, withdrawal or retirement
of a Shareholder from the Company as a Shareholder. Such terms shall not include
any Disposition of any Company Security, even though the Shareholder making a
Disposition may cease to be a Shareholder as a result of such Disposition.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended from time to time, and any successor to such statute and all rules and
regulations promulgated thereunder.
"SECURITIES AND EXCHANGE COMMISSION" means the Securities and Exchange
Commission of the United States and any successor thereto.
"SHARE DISTRIBUTION" means a distribution in respect of a Company Security
made or required to be made in an additional Company Security or a fraction
thereof to any Shareholder pursuant to the terms of the Company Securities held
by such Shareholder.
"SHAREHOLDER" means any Person admitted as a shareholder in accordance
with Section 3.01(a), but such term does not include any Person who has ceased
to be a Record Holder of any Company Security. Shareholders are "members" (as
such term is defined in the Act) of the Company.
"SHAREHOLDER INTEREST" means a limited liability company interest (as such
term is defined in the Act) of a Shareholder, including the right to receive
Share Distributions and other distributions from the Company, together with all
other rights, benefits and privileges enjoyed by the Shareholder (under the Act,
the Organizational Certificate, this Agreement or otherwise) in its capacity as
a Shareholder, including the right to vote, consent and approve, and all
obligations, duties and liabilities imposed on the Shareholder (under the Act,
the Organizational Certificate, this Agreement or otherwise) in its capacity as
a Shareholder.
"SUBSIDIARY" has the meaning assigned to such term in the Partnership
Agreement.
"TAX INDEMNIFICATION AGREEMENT" means the Tax Indemnification Agreement
dated as of October 17, 2002 between the Company and Enbridge Inc., as amended,
supplemented or restated from time to time.
"TAX STATUS EVENT" means any event causing the Partnership to be taxable
as a corporation or otherwise taxed as an entity for U.S. federal income tax
purposes.
"TRADING DAY" means, with respect to Listed Shares or Class A Common
Units, a day on which the principal National Securities Exchange on which the
Listed Shares or Class A
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Common Units, as the case may be, are listed or admitted to trading is open for
business or, if the Listed Shares or Class A Common Units, as the case may be,
are not listed or admitted to trading on any National Securities Exchange, a day
on which banking institutions in New York, New York generally are open.
"TRANSFER AGENT" means any bank, trust company or other Person (including
the Company or any Affiliate thereof) appointed from time to time by the Board
of Directors to act as registrar and transfer agent for the Company Securities.
Initially, Mellon Investor Services shall be the Transfer Agent for the Listed
Shares.
"TREASURY REGULATIONS" means the regulations promulgated by the United
States Department of the Treasury pursuant to and in respect of provisions of
the Code. All references herein to sections of the Treasury Regulations shall
include any corresponding provisions of succeeding, similar, substitute,
proposed or final Treasury Regulations.
"UNDERWRITERS" means the several underwriters named in Schedule I to the
Underwriting Agreement.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement dated as of
October 10, 2002 among the Underwriters, the Company, the Organizational
Shareholder, Enbridge Inc., and the Partnership, providing for the purchase of
Listed Shares by the Underwriters, as amended, supplemented or restated from
time to time.
"VOTING SHARE" has the meaning assigned to such term in Section 4.01(a).
SECTION 1.02 RULES OF CONSTRUCTION. The following provisions shall be
applied wherever appropriate herein:
(a) terms defined in Section 1.01 have the meanings assigned to them
in that Section for purposes of this Agreement; terms defined in the
Purchase Provisions and also in this Agreement shall, in the Purchase
Provisions, have the meanings assigned to them therein.
(b) "herein," "hereby," "hereunder," "hereof," "hereto" and other
equivalent words shall refer to this Agreement as an entirety and not
solely to the particular portion of this Agreement in which any such word
is used;
(c) "including" means "including without limitation" and is a term
of illustration and not of limitation;
(d) all definitions set forth herein shall be deemed applicable
whether the words defined are used herein in the singular or the plural;
(e) unless otherwise expressly provided, any term defined herein by
reference to any other document shall be deemed to be amended herein to
the extent that such term is subsequently amended in such document;
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(f) references herein to other documents and agreements shall mean
such documents and agreements as amended and restated from time to time;
(g) wherever used herein, any pronoun or pronouns shall be deemed to
include both the singular and plural and to cover all genders;
(h) neither this Agreement nor any other agreement, document or
instrument referred to herein or executed and delivered in connection
herewith shall be construed against any Person as the principal
draftsperson hereof or thereof;
(i) the section headings appearing in this Agreement are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or extent of such Section, or in any way affect this
Agreement; and
(j) any references herein to a particular Section, Article, Exhibit
or Schedule (other than in connection with the Code, the Treasury
Regulations or the Act) means a Section or Article of, or an Exhibit or
Schedule to, this Agreement unless another agreement is specified.
ARTICLE II
ORGANIZATION
SECTION 2.01 FORMATION AND CONTINUATION. The Company was organized as a
Delaware limited liability company by the filing of a Certificate of Formation
on May 14, 2002 (as amended, supplemented or restated from time to time, the
"ORGANIZATIONAL CERTIFICATE"), pursuant to the Act. The Organizational
Shareholder, as the initial Shareholder, hereby continues the existence of the
Company as a limited liability company pursuant to the provisions of the Act.
SECTION 2.02 NAME. The name of the Company is "Enbridge Energy Management,
L.L.C." and all Company business shall be conducted in that name or such other
names that comply with Law and as the Board of Directors may select.
SECTION 2.03 REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE; OTHER
OFFICES. The registered office of the Company required by the Act to be
maintained in the State of Delaware shall be the office of the initial
registered agent for service of process named in the Organizational Certificate
or such other office (which need not be a place of business of the Company) as
the Board of Directors may designate in the manner provided by Law. The
registered agent for service of process of the Company in the State of Delaware
shall be the initial registered agent for service of process named in the
Organizational Certificate or such other Person or Persons as the Board of
Directors may designate in the manner provided by Law. The principal office of
the Company in the United States shall be located at 1100 Louisiana, Suite 3300,
Houston, Texas 77002, or such other place as the Board of Directors may from
time to time designate, which need not be in the State of Delaware, and the
Company shall maintain records there and shall keep the street address of such
principal office at the registered office of
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the Company in the State of Delaware. The Company may have such other offices as
the Board of Directors may designate.
SECTION 2.04 PURPOSE; POWERS. The purposes of the Company are to
Beneficially Own, directly or through one or more of its Affiliates, limited
partner interests in the Partnership, to manage and control, directly or through
one or more of its Affiliates, the business and affairs of the Partnership and
its Subsidiaries and to engage in any lawful business, purpose or activity
related to any of the foregoing. The Company shall possess and may exercise all
the powers and privileges granted by the Act, by any other Law or by this
Agreement, together with any powers incidental thereto, including such powers
and privileges as are necessary or convenient to the conduct, promotion or
attainment of the business, purposes or activities of the Company.
SECTION 2.05 FOREIGN QUALIFICATION. Prior to the Company's conducting
business in any jurisdiction other than the State of Delaware, the Board of
Directors shall cause the Company to comply, to the extent procedures are
available and those matters are reasonably within the control of the Board of
Directors, with all requirements necessary to qualify the Company as a foreign
limited liability company in that jurisdiction.
SECTION 2.06 POWER OF ATTORNEY.
(a) Each Shareholder does hereby constitute and appoint each Person
specifically authorized by the Board of Directors or any Liquidator to act
as its true and lawful representative and attorney-in-fact, in its name,
place and stead, to execute, swear to, acknowledge, deliver and file:
(i) in the appropriate public offices (A) all certificates,
documents and other instruments (including, without limitation, this
Agreement and the Organizational Certificate and all amendments or
restatements thereof) that the Board of Directors or the Liquidator
deems necessary or appropriate to form, qualify or continue the
existence or qualification of the Company in the State of Delaware
and in all other jurisdictions in which the Company may conduct
business or own property; (B) all certificates, documents and other
instruments that the Board of Directors or the Liquidator deems
necessary or appropriate to reflect, in accordance with its terms,
any amendment, change, modification or restatement of this
Agreement; (C) all certificates, documents and other instruments
(including, without limitation, conveyances and a certificate of
cancellation) that the Board of Directors or the Liquidator deems
necessary or appropriate to reflect the dissolution and liquidation
of the Company pursuant to the terms of this Agreement; (D) all
certificates, documents and other instruments relating to the
transfer of any Company Security; (E) all certificates, documents
and other instruments relating to the determination of the rights,
preferences and privileges of any class or series of Company
Securities; and (F) all certificates, documents and other
instruments (including, without limitation, agreements and a
certificate of merger) relating to a merger or consolidation of the
Company; and
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(ii) all ballots, consents, approvals, waivers, certificates
and other instruments necessary or appropriate, in the sole
discretion of the Board of Directors or the Liquidator, to make,
evidence, give, confirm or ratify any vote, consent, approval,
agreement or other action that is made or given by the Shareholders
hereunder or is consistent with the terms of this Agreement or is
necessary or appropriate, in the sole discretion of the Board of
Directors or the Liquidator, to effectuate the terms or intent of
this Agreement; PROVIDED HOWEVER, that when required by any
provision of this Agreement that establishes a percentage of Company
Securities or of Company Securities of any class or series required
to take any action, the power of attorney made in this Section 2.06
may be exercised only after the required vote, consent or approval
of the percentage of Company Securities or of Company Securities of
such class or series has been obtained.
(b) The foregoing power of attorney is hereby declared to be
irrevocable and a power coupled with an interest; and it shall survive and
not be affected by the subsequent death, incompetency, disability,
incapacity, dissolution, bankruptcy or termination of any Shareholder and
the transfer of all or any portion of such Shareholder's Company
Securities, and shall extend to all Assignees. Each Shareholder hereby
agrees to be bound by any act of the Person or Persons specifically
authorized by the Board of Directors or the Liquidator acting in good
faith pursuant to such power of attorney, and each Shareholder hereby
waives any and all defenses that may be available to contest, negate or
disaffirm the action of such authorized Persons taken in good faith under
such power of attorney. Each Shareholder shall execute and deliver to such
authorized Persons, within 15 days after receipt of a request therefor
from such authorized Persons, such further designations, powers of
attorney and other instruments as the Board of Directors, the Liquidator
or such authorized Persons deems necessary to effectuate this Agreement
and the purposes of the Company.
SECTION 2.07 TERM. The term of the Company commenced on May 14, 2002,
which was the date of the filing of the Organizational Certificate in the office
of the Secretary of State of the State of Delaware, and the Company's existence
shall be perpetual, unless and until the Company is dissolved or merged out of
existence in accordance with Article 7.
SECTION 2.08 TAXATION AS CORPORATION; NO STATE-LAW PARTNERSHIP. The
Company shall elect pursuant to Sections 301.7701-2 and 301.7701-3 of the
Treasury Regulations to be treated as a corporation for all purposes under the
Code. The Shareholders intend that the Company not be a partnership (including a
limited partnership) or joint venture, that no Shareholder be a partner or joint
venturer of any other Shareholder, and that this Agreement may not be construed
to suggest otherwise.
SECTION 2.09 TITLE TO COMPANY ASSETS. Title to Company assets, whether
real, personal or mixed and whether tangible or intangible, shall be deemed to
be owned by the Company as an entity, and no Shareholder, Assignee, Record
Holder or Beneficial Owner of any Company Security, individually or
collectively, shall have any ownership interest in any
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Company assets or any portion thereof. Title to any or all of the Company assets
may be held in the name of the Company or one or more of its Affiliates or one
or more nominees, as the Board of Directors may determine. All Company assets
shall be recorded as the property of the Company in its books and records,
irrespective of the name in which record title to the Company assets is held.
ARTICLE III
SHAREHOLDERS; CERTIFICATES;
TRANSFER OF COMPANY SECURITIES
SECTION 3.01 SHAREHOLDERS.
(a) A Person shall be admitted as a Shareholder, and shall become
bound by this Agreement, if such Person executes this Agreement or,
without such execution, if such Person purchases or otherwise acquires a
Company Security and becomes the Record Holder of such Company Security in
accordance with the provisions of Section 3.05. Unless otherwise provided
in this Agreement, a Person may become a Record Holder without the consent
or approval of any of the Shareholders. All rights of Shareholders under
this Agreement are owned, and may be exercised, only by Record Holders.
(b) The name and mailing address of each Record Holder shall be
listed on the books and records of the Company or the Transfer Agent. The
Secretary of the Company shall be required to update the books and records
from time to time as necessary to reflect accurately the information
therein or to cause the Transfer Agent to do so, as applicable. Company
Securities shall be represented by the Certificates held by the
Shareholders, except as provided in Section 3.04(b).
SECTION 3.02 NO LIABILITY TO THIRD PARTIES. No Shareholder, Assignee,
Record Holder or Beneficial Owner of any Company Security shall be liable for
the debts, obligations or liabilities of the Company, whether arising in
contract, tort or otherwise, by reason of being a Shareholder, Assignee, Record
Holder or Beneficial Owner of any Company Security.
SECTION 3.03 NO RESIGNATION OR EXPULSION. A Shareholder does not have the
right or power to Resign and no Shareholder may be expelled or removed as a
Shareholder.
SECTION 3.04 CERTIFICATES.
(a) Certificates evidencing any of the Company Securities
("CERTIFICATES") shall be in such form, not inconsistent with that
required by the Act or any other Law and this Agreement, as shall be
approved by the Board of Directors. Each Certificate shall certify the
number of Company Securities and the class of such Company Securities that
the Certificate represents and shall be signed by (i) the Chairman of the
Board, the President or any Vice President and (ii) the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of the
Company and countersigned by the Transfer
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Agent (in the event that the Company is not the Transfer Agent); PROVIDED,
HOWEVER, that any or all of the signatures, including the
countersignature, on the Certificate may be facsimile. In the event that
any Officer or Transfer Agent who shall have signed, or whose facsimile
signature or signatures shall have been placed upon, any such Certificate
shall have ceased to be such Officer or Transfer Agent before such
Certificate is issued by the Company, such Certificate may nevertheless be
issued by the Company with the same effect as if such person were such
Officer or Transfer Agent on the date of issue. Certificates for each
class of Company Securities shall be consecutively numbered and shall be
entered in the books and records of the Company as they are issued and
shall exhibit the holder's name and number of Company Securities, except
as provided in Section 3.04(b). No Certificate shall be valid for any
purpose until it has been countersigned by the Transfer Agent (in the
event that the Company is not the Transfer Agent).
(b) The Company Securities may be represented by global certificates
issued in the name of Cede & Co. (or such other name as the depositary may
direct), as nominee for the Depositary Trust Company, as depositary for
the Company Securities, and Certificates shall not be issued to owners of
beneficial interests in global certificates held by the depositary. Any
provision herein calling for delivery of Certificates for Company
Securities may be satisfied by delivering such Company Securities by
book-entry transfer to such owners of beneficial interests at an account
maintained for that purpose by the Transfer Agent with the depositary, in
accordance with arrangements among the depositary and its participants and
subject to the various policies and procedures that may be adopted by the
depositary from time to time.
SECTION 3.05 REGISTER, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Company shall keep or cause to be kept on behalf of the
Company a register that, subject to any requirement of the Board of
Directors and subject to the provisions of Section 3.05(b), shall provide
for the registration and transfer of Company Securities. The Transfer
Agent is hereby appointed registrar and transfer agent for the purpose of
registering Company Securities and transfers of Company Securities as
herein provided. At any time that the Transfer Agent ceases to act as a
result of resignation, removal or otherwise, the Company shall act as the
Transfer Agent until a successor is appointed by the Board of Directors.
The Company shall not recognize transfers of Company Securities unless the
same are effected in the manner described in this Section 3.05. Upon
surrender for registration of transfer of any Certificate, and subject to
the provisions of Section 3.05(b), the appropriate Officers of the Company
shall sign, and the Transfer Agent shall countersign and deliver, in the
name of the holder or the designated transferee or transferees, as
required pursuant to the Record Holder's instructions, one or more new
Certificates evidencing the same aggregate number and type of Company
Securities as were evidenced by the Certificate so surrendered.
(b) The Company shall not recognize any transfer of Company
Securities until (i) the Certificates evidencing such Company Securities
are surrendered to the Transfer
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Agent for registration of transfer, or (ii) such Company Securities are
delivered by book-entry transfer to the Shareholder in accordance with
Section 3.04(b). No charge shall be imposed by the Company for such
transfer; PROVIDED, HOWEVER, that, as a condition to the issuance of any
new Certificate under this Section 3.05, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge,
surety bond premium, special charges for services requested by the
transferor or transferee, or similar fees or charges that may be imposed
with respect thereto.
(c) By transfer of Company Securities in accordance with this
Section 3.05, the transferor shall be deemed to have given the transferee
the right to be admitted to the Company as a Shareholder, and each
transferee of Company Securities (including any nominee holder or an agent
acquiring such Company Securities for the account of another Person) shall
become a Shareholder with respect to the Company Securities so transferred
to such Person when any such transfer and admission is reflected in the
books and records of the Transfer Agent, and such Person thereby becomes a
Record Holder of such Company Securities.
(d) The Company shall be entitled to recognize the Record Holder as
the owner of Company Securities and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such Company
Securities on the part of any other Person, whether or not the Company
shall have actual or other notice thereof, except as otherwise provided by
Law. Except as otherwise provided in this Agreement or by Law, including
the Securities Act, Company Securities shall be freely transferable to any
Person. The transfer of any Company Securities and the admission of any
new Shareholder shall not constitute an amendment to this Agreement.
(e) Any Share Distribution or other distribution in respect of
Company Securities shall be made by the Company, directly or through the
Transfer Agent or through any other Person or agent, only to the Record
Holders thereof as of the Record Date set by the Board of Directors for
the Share Distribution or other distribution. The making of such Share
Distribution or other distribution shall constitute full payment and
satisfaction of the Company's liability in respect of such Share
Distribution or other distribution regardless of any claim of any Person
who may have an interest in such Share Distribution or other distribution
by reason of an assignment or otherwise.
SECTION 3.06 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
(a) If any mutilated Certificate is surrendered to the Transfer
Agent, then the appropriate Officers on behalf of the Company shall sign,
and upon the Company's request the Transfer Agent shall countersign and
deliver in exchange therefor, a new Certificate evidencing the same
aggregate number and type of Company Securities as the Certificate so
surrendered.
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(b) The appropriate Officers on behalf of the Company shall sign,
and upon the Company's request the Transfer Agent shall countersign and
deliver, a new Certificate in place of any Certificate previously issued
if the Record Holder of the Certificate:
(i) makes proof by affidavit in form and substance
satisfactory to an Officer that a previously issued Certificate has
been lost, destroyed or stolen;
(ii) requests the issuance of a new Certificate before the
Company has notice that the previously issued Certificate has been
acquired by a purchaser for value in good faith and without notice
of an adverse claim;
(iii) if requested, delivers to the Company a bond, in form
and substance satisfactory to the Company, with surety or sureties
and with fixed or open penalty as the Company may reasonably direct,
in its sole discretion, to indemnify the Company and the Transfer
Agent against any claim that may be made on account of the alleged
loss, destruction or theft of the Certificate; and
(iv) satisfies any other reasonable requirements imposed by
the Company, including the requirement to make a payment pursuant to
Section 3.06(c).
If a Shareholder fails to notify the Company within a reasonable time
after such Shareholder has notice of the loss, destruction or theft of a
Certificate, and a transfer of the Company Securities represented by the
Certificate is registered before the Company or the Transfer Agent
receives such notification, the Shareholder shall be precluded from making
any claim against the Company or the Transfer Agent for such transfer or
for a new Certificate.
(c) As a condition to the issuance of any new Certificate under this
Section 3.06, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Transfer Agent) reasonably connected therewith.
ARTICLE IV
AUTHORIZATION AND ISSUANCE OF COMPANY SECURITIES
SECTION 4.01 COMPANY SECURITIES.
(a) Subject to Section 4.03(d)(i), the requirements of the Act and
other applicable Law, the Company shall have authority to issue an
unlimited number of Company Securities, including Company Securities with
the rights set forth in Section 4.02 (the "VOTING SHARES") and Company
Securities with the rights set forth in Section 4.03 and the Purchase
Provisions (the "LISTED SHARES").
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(b) The total number of Company Securities that are issued and
Outstanding shall at all times equal the number of I-Units held by the
Company. If the number of I-Units held by the Company increases or
decreases, the Company shall by the same number increase or decrease, as
the case may be, the number of Company Securities that are issued and
Outstanding (i) in the event of an increase in the number of I-Units, by
making to each Record Holder of Company Securities a pro rata Share
Distribution or by effecting a split of Company Securities pursuant to
Section 4.04, or (ii) in the event of a decrease in the number of I-Units,
by effecting a combination of Company Securities pursuant to Section 4.04.
(c) Company Securities issued as Share Distributions or issued for
such consideration as the Board of Directors determines to be appropriate
shall be deemed fully paid and non-assessable, if the entire amount of
such consideration has been received by the Company for such Company
Securities.
SECTION 4.02 VOTING SHARES.
(a) Prior to the execution of this Agreement, one Voting Share was
issued to the Organizational Shareholder. The designations, preferences
and relative, participating, optional or other special rights, powers and
duties relating to the Voting Shares are as set forth in this Section
4.02. Each Voting Share shall be identical in every respect with each
other Voting Share.
(b) The Record Holders of Voting Shares shall be entitled to one
vote per Voting Share on matters submitted to a vote or consent of the
Record Holders of Voting Shares, as provided in Section 4.02(c) and
elsewhere in this Agreement; PROVIDED, HOWEVER, that neither any Record
Holder of Voting Shares nor any of its Affiliates may vote any Voting
Shares with respect to a matter that is presented to the Record Holders of
Voting Shares pursuant to Section 4.02(c) in order to determine the manner
in which I-Units shall be voted with respect to any of the following
matters:
(i) a proposed amendment to the Partnership Agreement pursuant
to Section 1.6 of the Partnership Agreement;
(ii) the proposed conversion of the Partnership into another
type of legal entity pursuant to Section 1.6 of the Partnership
Agreement;
(iii) any vote required to be taken under Section 11.2(a) of
the Partnership Agreement with respect to the proposed transfer by
the general partner of the Partnership of all, but not less than
all, of its Partnership Interest (as defined in the Partnership
Agreement) as the general partner of the Partnership to a single
transferee and the admission of such transferee as a general partner
of the Partnership;
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(iv) the election of a successor general partner pursuant to
Section 13.1(b) of the Partnership Agreement upon the withdrawal of
the general partner of the Partnership pursuant to Section
13.1(a)(i) of the Partnership Agreement;
(v) the proposed removal of the general partner of the
Partnership and the election of a successor general partner in
connection therewith pursuant to Section 13.2 of the Partnership
Agreement; or
(vi) a proposed amendment to the Partnership Agreement for
which a class vote of the I-Units is required pursuant to Section
15.3(c) of the Partnership Agreement.
(c) Subject to the limitations set forth in Section 4.02(b), the
Company or the Board of Directors shall submit to the vote of the Record
Holders of Voting Shares any matter on which the Company is entitled to
vote as a record holder of I-Units in order to ascertain the manner in
which such I-Units shall be voted. The Company shall vote, or not vote, as
the case may be, the I-Units that it owns in the following manner:
(i) for each Voting Share or fraction thereof that has been
voted "for" the matter presented to the Record Holders of Voting
Shares, the Company shall vote one I-Unit or an equivalent fraction
"for" such corresponding matter when presented to the record holder
of I-Units, such that the number of Voting Shares voted "for" such
matter presented to the Record Holders of Voting Shares, when added
to the number of Outstanding Listed Shares voted "for" such matter
presented to the Record Holders of Outstanding Listed Shares
pursuant to Section 4.03(c), shall equal the number of I-Units
voting "for" such corresponding matter when presented to the record
holder of I-Units;
(ii) for each Voting Share or fraction thereof that has been
voted "against" the matter presented to the Record Holders of Voting
Shares, the Company shall vote one I-Unit or an equivalent fraction
"against" such matter when presented to the record holder of
I-Units, such that the number of Voting Shares voted "against" such
matter presented to the Record Holders of Voting Shares, when added
to the number of Outstanding Listed Shares voted "against" such
matter presented to the Record Holders of Outstanding Listed Shares
pursuant to Section 4.03(c), shall equal the number of I-Units
voting "against" such corresponding matter when presented to the
record holder of I-Units;
(iii) for each Voting Share or fraction thereof that has
abstained from the vote on the matter presented to the Record
Holders of Voting Shares, the Company shall abstain from voting one
I-Unit or an equivalent fraction on such matter when presented to
the record holder of I-Units, such that the number of Voting Shares
that have abstained from voting on such matter presented to the
Record Holders of Voting Shares, when added to the number of
Outstanding Listed Shares that have abstained from voting on such
matter presented to the
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Record Holders of Outstanding Listed Shares pursuant to Section
4.03(c), shall equal the number of I-Units abstaining from voting on
such corresponding matter when presented to the record holder of
I-Units; and
(iv) for each Voting Share or fraction thereof that has not
been voted, whether by broker non-vote or otherwise, on the matter
presented to the Record Holders of Voting Shares, the Company shall
not vote one I-Unit or equivalent fraction on such matter when
presented to the record holder of I-Units, such that the number of
Voting Shares not voted on such matter presented to the Record
Holders of Voting Shares, when added to the number of Outstanding
Listed Shares not voted on such matter presented to the Record
Holders of Outstanding Listed Shares pursuant to Section 4.03(c),
shall equal the number of I-Units not voting on such corresponding
matter when presented to the record holder of I-Units.
(d) In the event that (i) the Partnership makes a cash distribution
in respect of its Common Units that results in an increase in the number
of outstanding I-Units pursuant to Section 5.10(a) of the Partnership
Agreement, or (ii) the Partnership engages in a merger, consolidation,
exchange, reorganization, recapitalization or similar transaction pursuant
to which the record holders of Common Units receive a cash distribution
and the number of I-Units held by the record holders of I-Units is
increased, the Company shall make a Share Distribution of additional
Voting Shares in respect of its Outstanding Voting Shares and fractional
Voting Shares in an amount per whole Voting Share equal to the quotient
obtained by dividing the amount of the cash distribution to be made by the
Partnership in respect of each Common Unit by the Average Market Price per
Listed Share. A Share Distribution in respect of a Voting Share or
fractional Voting Share pursuant to this Section 4.02(d) shall be made on
the date on which the Partnership makes the related cash distribution in
respect of each Common Unit. Each fractional Voting Share that is created
as a result of any Share Distribution in respect of Voting Shares pursuant
to this Section 4.02(d) shall be equal to and represented by a fraction
that is calculated to six decimal places (without rounding), and any
calculation that would result in a fractional interest in excess of
one-millionth (1/1,000,000) of a Voting Share shall be disregarded without
payment or other consideration and shall not be accumulated. Each Voting
Share or fraction thereof issued as a Share Distribution shall bear a date
of original issuance that is the same as the date on which such Share
Distribution was made and shall be duly authorized, fully paid and
nonassessable. The Company shall identify the Record Holders entitled to
receive any Share Distributions pursuant to this Section 4.02(d) in
accordance with Section 3.05. Except as provided in this Section 4.02(d)
and Sections 4.01(b) and 4.04, no Share Distribution shall be made in
respect of Voting Shares. Except as otherwise provided in Section 7.02, no
distribution in respect of Voting Shares shall be made in cash.
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SECTION 4.03 LISTED SHARES.
(a) As of the First Time of Delivery (as defined in the Underwriting
Agreement), there shall be Outstanding 9,000,000 Listed Shares, and, in
the event that the Underwriters exercise their option to purchase
additional Listed Shares pursuant to the Underwriting Agreement, there
shall be Outstanding up to 10,350,000 Listed Shares. The Listed Shares
shall initially be listed on a National Securities Exchange. The
designations, preferences and relative, participating, optional or other
special rights, powers and duties relating to the Listed Shares are as set
forth in this Section 4.03. Each Listed Share shall be identical in every
respect with each other Listed Share.
(b) Except as provided in Sections 4.03(c) and (d), the Record
Holders of Listed Shares, in their capacity as such, shall not be entitled
to vote on any matter. On any matter submitted by the Company or the Board
of Directors to the Record Holders of Outstanding Listed Shares pursuant
to Sections 4.03(c) or (d), each Record Holder of Outstanding Listed
Shares shall be entitled, subject to the limitations set forth in Section
4.03(e), to one vote per Listed Share.
(c) The Company or the Board of Directors shall submit to the vote
of the Record Holders of Outstanding Listed Shares any matter on which the
Company is entitled to vote as a record holder of I-Units in order to
ascertain the manner in which such I-Units shall be voted. The Company
shall vote, or not vote, as the case may be, the I-Units that it owns in
the following manner:
(i) for each Outstanding Listed Share or fraction thereof that
has been voted "for" the matter presented to Record Holders of
Outstanding Listed Shares, the Company shall vote one I-Unit or an
equivalent fraction "for" such corresponding matter when presented
to the record holder of I-Units, such that the number of Outstanding
Listed Shares voted "for" such matter presented to the Record
Holders of Outstanding Listed Shares, when added to the number of
Voting Shares voted "for" such matter presented to the Record
Holders of Voting Shares pursuant to Section 4.02(c), shall equal
the number of I-Units voting "for" such corresponding matter when
presented to the record holder of I-Units;
(ii) for each Outstanding Listed Share or fraction thereof
that has been voted "against" the matter presented to Record Holders
of Outstanding Listed Shares, the Company shall vote one I-Unit or
an equivalent fraction "against" such matter when presented to the
record holder of I-Units, such that the number of Outstanding Listed
Shares voted "against" such matter presented to the Record Holders
of Outstanding Listed Shares, when added to the number of Voting
Shares voted "against" such matter presented to the Record Holders
of Voting Shares pursuant to Section 4.02(c), shall equal the number
of I-Units voting "against" such corresponding matter when presented
to the record holder of I-Units;
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(iii) for each Outstanding Listed Share or fraction thereof
that has abstained from the vote on the matter presented to Record
Holders of Outstanding Listed Shares, the Company shall abstain from
voting one I-Unit or an equivalent fraction on such matter when
presented to the record holder of I-Units, such that the number of
Outstanding Listed Shares that have abstained from voting on such
matter presented to the Record Holders of Outstanding Listed Shares,
when added to the number of Voting Shares that have abstained from
voting on such matter presented to the Record Holders of Voting
Shares pursuant to Section 4.02(c), shall equal the number of
I-Units abstaining from voting on such corresponding matter when
presented to the record holder of I-Units; and
(iv) for each Outstanding Listed Share or fraction thereof
that has not been voted, whether by broker non-vote or otherwise, on
the matter presented to the Record Holders of Outstanding Listed
Shares, the Company shall not vote one I-Unit or equivalent fraction
on such matter when presented to the record holder of I-Units, such
that the number of Outstanding Listed Shares not voted on such
matter presented to the Record Holders of Outstanding Listed Shares,
when added to the number of Voting Shares not voted on such matter
presented to the Record Holders of Voting Shares pursuant to Section
4.02(c), shall equal the number of I-Units not voting on such
corresponding matter when presented to the record holder of I-Units.
(d) The Company or the Board of Directors shall submit to the vote
of Record Holders of Outstanding Listed Shares the following matters:
(i) any proposed issuance of any new class or series of
Company Securities into which the interests in the Company may be
divided, other than the Voting Shares and the Listed Shares;
(ii) any matter for which the approval of the Record Holders
of Outstanding Listed Shares is required pursuant to Section
7.01(a);
(iii) any matter for which the approval of the Record Holders
of Outstanding Listed Shares is required pursuant to Section
9.01(b);
(iv) any matter for which the approval of the Record Holders
of Outstanding Listed Shares is required pursuant to Section 2.05 of
the Purchase Provisions;
(v) any matter for which the approval of the Record Holders of
Outstanding Listed Shares is required pursuant to the Delegation of
Control Agreement; and
(vi) any proposed amendment to, or alteration or repeal of,
this Agreement, including the Purchase Provisions, the Delegation of
Control
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Agreement, or the Tax Indemnification Agreement if such proposed
amendment, alteration or repeal would (A) reduce the time for any
notice to which Record Holders of Listed Shares would be entitled,
or (B) have a material adverse effect on the Company or the powers,
preferences or rights of the Listed Shares, as determined in the
sole discretion of the Board of Directors; PROVIDED, HOWEVER, that
any of the following amendments shall not be deemed to have a
material adverse effect on the powers, preferences or rights of the
Listed Shares: (1) any amendment that is necessary or desirable to
comply with applicable Law, compliance with which the Board of
Directors determines in its sole discretion to be in the best
interests of the Company and the Shareholders; (2) any amendment
that is required to effect the intent of the provisions of this
Agreement, including the Purchase Provisions, or is otherwise
contemplated by this Agreement, including the Purchase Provisions;
and (3) any amendment to the Purchase Provisions that is
contemplated by Section 8.02 of the Purchase Provisions.
(e) Any Listed Shares held by the Record Holders of Voting Shares
and their Affiliates:
(i) may not be voted on any matter in respect of which the
Record Holders of Voting Shares and their Affiliates are not
entitled to vote any Voting Shares pursuant to Section 4.02(b); and
(ii) shall not be entitled to vote and shall not be considered
Outstanding with respect to any matter that is presented to the
Record Holders of Listed Shares pursuant to Section 4.03(d).
(f) In the event that (i) the Partnership pays a cash distribution
in respect of its Common Units that results in an increase in the number
of outstanding I-Units pursuant to Section 5.10(a) of the Partnership
Agreement, or (ii) the Partnership engages in a merger, consolidation,
exchange, reorganization, recapitalization or similar transaction pursuant
to which the record holders of Common Units receive a cash distribution
and the number of I-Units held by the record holders of I-Units is
increased, the Company shall make a Share Distribution of additional
Listed Shares in respect of its Outstanding Listed Shares and fractional
Listed Shares in an amount per whole Listed Share equal to the quotient
obtained by dividing the amount of the cash distribution to be made by the
Partnership on each Common Unit by the Average Market Price per Listed
Share. Except as provided in the Purchase Provisions, a Share Distribution
in respect of each Listed Share shall be made on the date on which the
Partnership makes the related cash distribution in respect of each Common
Unit. Each fractional Listed Share that is created as a result of any
Share Distribution in respect of Listed Shares pursuant to this Section
4.03(f) shall be equal to and represented by a fraction that is calculated
to six decimal places (without rounding), and any calculation that would
result in a fractional interest in excess of one-millionth (1/1,000,000)
of a Listed Share shall be disregarded without payment or other
consideration and shall not be accumulated. Each Listed Share or fraction
thereof issued as a Share Distribution shall bear a date of original
issuance that
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is the same as the date on which such Share Distribution was made and
shall be duly authorized, fully paid and nonassessable. The Company shall
identify the Record Holders entitled to receive any Share Distribution in
accordance with Section 3.05. Except as provided in this Section 4.03(f)
and Sections 4.01(b) and 4.04, no Share Distributions shall be made in
respect of Listed Shares. Except as otherwise provided in Section 7.02(b),
no distribution in respect of Listed Shares shall be made in cash.
(g) Under certain circumstances set forth in the Purchase
Provisions, Shareholders may be required to sell their Listed Shares to
the Purchaser (as defined in the Purchase Provisions). The Purchase
Provisions also set forth the rights of the Record Holders of Listed
Shares to any distributions, including Share Distributions, on Listed
Shares that have been declared (or a record date for which has been set)
but that have not been paid or made. The Purchase Provisions are attached
as Annex A and are an integral part of this Agreement.
(h) Fractions of Listed Shares shall not be sold on a National
Securities Exchange until they equal, in the aggregate, whole Listed
Shares.
SECTION 4.04 SPLITS AND COMBINATIONS. The Board of Directors may make a
pro rata distribution of Company Securities to all Record Holders or may effect
a subdivision or combination of Company Securities; PROVIDED, HOWEVER, that
after such distribution, subdivision or combination, each Shareholder shall have
the same relative Shareholder Interest as before such distribution, subdivision
or combination. In the event that (a) the Partnership makes a pro rata
distribution of Partnership Securities to the record holders of the I-Units, (b)
the Partnership effects a subdivision or combination of the I-Units, or (c) the
Partnership engages in a merger or other transaction that has the effect of
converting, subdividing or combining the I-Units, then the Board of Directors
shall be required to make a corresponding distribution, conversion, subdivision
or combination of the Company Securities so that the number of I-Units held by
the Company and the aggregate number of Company Securities that are issued and
Outstanding shall always be equal. Each fractional Company Security that is
created as a result of any distribution, conversion, subdivision or combination
pursuant to this Section 4.04 shall be equal to and represented by a fraction
that is calculated to six decimal places (without rounding), and any calculation
that would result in a fractional interest in excess of one-millionth
(1/1,000,000) of a Company Security shall be disregarded without payment or
other consideration and shall not be accumulated.
SECTION 4.05 WITHHOLDING. Notwithstanding any other provision of this
Agreement, the Company shall comply with any withholding requirements under any
Law in connection with the payment of Share Distributions and other
distributions in respect of Company Securities and shall remit amounts withheld
to and file required forms with applicable taxing authorities. In the event of
any claimed over-withholding, Shareholders shall be limited to an action against
the applicable taxing authority. If an amount required to be withheld was not
withheld from an actual Share Distribution or other distribution, the Company
may reduce subsequent Share Distributions or other distributions by the amount
of such required withholding. Each Shareholder agrees to furnish the Company
such forms or other
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documentation as are necessary to assist the Company in determining the extent
of, and in fulfilling, its withholding obligations.
ARTICLE V
MANAGEMENT
SECTION 5.01 MANAGEMENT OF THE COMPANY'S AFFAIRS.
(a) As provided in this Agreement, all management powers over the
business and affairs of the Company shall be vested exclusively in a board
of directors (the "BOARD OF DIRECTORS") and, subject to the direction of
the Board of Directors, the Officers. The Officers and Directors shall
constitute "managers" of the Company within the meaning of the Act.
(b) No Shareholder, Assignee, Record Holder or Beneficial Owner of
any Company Security, in its capacity as such, shall have any management
power over the business and affairs of the Company or actual or apparent
authority to enter into contracts on behalf of, or to otherwise bind, the
Company.
(c) Except as otherwise specifically provided in this Agreement, the
authority and functions of the Board of Directors on the one hand and of
the Officers on the other shall be identical to the authority and
functions of the board of directors and officers, respectively, of a
corporation organized under the DGCL. Thus, except as otherwise
specifically provided in this Agreement, the business and affairs of the
Company shall be managed under the direction of the Board of Directors,
and the day-to-day activities of the Company shall be conducted on the
Company's behalf by the Officers, who shall be agents of the Company. In
addition to the powers that now or hereafter can be granted to managers
under the Act and to all other powers granted under any other provision of
this Agreement or the Delegation of Control Agreement, and except as set
forth in the Delegation of Control Agreement, the Board of Directors
(subject to Section 5.03 and Article 9) and the Officers (subject to
Section 5.05 and the direction of the Board of Directors) shall have full
power and authority to do all things on such terms as they, in their sole
discretion, may deem necessary or appropriate to conduct, or cause to be
conducted, the business and affairs of the Company.
SECTION 5.02 BOARD OF DIRECTORS.
(a) NUMBER. The Board shall consist of one or more members, the
number thereof to be determined from time to time by approval of the
Record Holders of a majority of the Voting Shares.
(b) ELECTION OF DIRECTORS; TERM. The Record Holders of Voting Shares
shall have the sole authority with respect to the election and removal of
Directors as provided in this Section 5.02(b). Vacancies existing from
time to time on the Board of Directors (including vacancies created by
virtue of an increase by the Record Holders of Voting Shares in the number
of Directors constituting the entire Board of Directors pursuant to
Section 5.02(a)) shall be filled by nominees elected by the Record Holders
of a majority
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of the Voting Shares. Each Director shall hold office until his successor
is elected and qualified or until his earlier death, resignation or
removal. Any Director may resign at any time upon written notice to the
Board of Directors or to the Secretary of the Company. Such resignation
shall take effect at the time specified therein, and, unless otherwise
specified therein, no acceptance of such resignation shall be necessary
for such resignation to become effective. Any Director or the entire Board
of Directors may be removed at any time, with or without cause, by
approval of the Record Holders of a majority of the Voting Shares. No
Person shall commence a term of service as a Director of the Company after
attaining the age of 70 years.
(c) REGULAR MEETINGS. Regular meetings of the Board of Directors or
any committee thereof may be held at such places within or without the
State of Delaware and at such times as the Board of Directors may from
time to time determine, and, if so determined, notice thereof need not be
given.
(d) SPECIAL MEETINGS. Special meetings of the Board of Directors or
any committee thereof may be held at any time or place within or without
the State of Delaware whenever called by the Chairman of the Board, or by
any two Directors. Reasonable notice thereof shall be given by the Person
or Persons calling the meeting.
(e) TELEPHONIC MEETINGS PERMITTED. Members of the Board of
Directors, or any committee thereof, may participate in a meeting of the
Board of Directors or of such committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which
all Persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in
person at such meeting.
(f) QUORUM; VOTE REQUIRED FOR ACTION. At all meetings of the Board
of Directors, one-third of the entire Board of Directors shall constitute
a quorum for the transaction of business. The vote of a majority of the
Directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors. In case at any meeting of the Board of
Directors a quorum shall not be present, the Directors present may adjourn
the meeting until a quorum shall be present. Each Director shall have one
vote.
(g) ORGANIZATION; CHAIRMAN. The Board of Directors may elect a
Chairman of the Board (the "CHAIRMAN OF THE BOARD"), who shall not be an
officer of the Company, to preside at meetings of the Board of Directors
and meetings of Shareholders, or may select a chairman to preside at any
meeting in the absence of the Chairman of the Board or in the event of his
inability or refusal to act. The Secretary shall act as secretary of the
meeting, but in his absence the Chairman of the Board or the chairman of
the meeting may appoint any Person to act as secretary of the meeting.
(h) ACTION BY DIRECTORS WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee
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thereof, may be taken without prior notice, without a meeting and without
a vote if all members of the Board of Directors or of such committee, as
the case may be, consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the Board of Directors or
such committee.
SECTION 5.03 RESTRICTIONS ON THE BOARD OF DIRECTORS' AUTHORITY. Except as
otherwise specifically provided in this Agreement or by resolution of the Board
of Directors, (1) no Director or group of Directors shall have any actual or
apparent authority to enter into contracts on behalf of, or to otherwise bind,
the Company, nor to take any action in the name of or on behalf of the Company
or conduct any business of the Company other than by action of the Board of
Directors taken in accordance with the provisions of this Agreement, and (2) no
Director shall have the power or authority to delegate to any Person such
Director's rights and powers as a Director to manage the business and affairs of
the Company.
SECTION 5.04 COMMITTEES.
(a) The Board of Directors may, by resolution of a majority of the
whole Board of Directors, designate one or more committees, each committee
to consist of one or more of the Directors of the Company. The Board of
Directors may designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member at any
meeting of such committee. In the absence or disqualification of a member
of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors
to act at the meeting in place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board
of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of
the Company.
(b) Unless the Board of Directors otherwise provides, each committee
designated by the Board of Directors may make, alter and repeal rules for
the conduct of its business. In the absence of a provision by the Board of
Directors or a provision in the rules of such committee to the contrary, a
majority of the entire authorized number of members of such committee
shall constitute a quorum for the transaction of business, the vote of a
majority of the members present at a meeting at the time of such vote if a
quorum is then present shall be the act of such committee, and in other
respects each committee shall conduct its business in the same manner as
the Board of Directors conducts its business pursuant to Section 5.02.
(c) The Board of Directors shall establish a committee of the Board
of Directors that is responsible for the oversight of the Company's
financial reporting and accounting matters (the "AUDIT COMMITTEE") and
that satisfies the requirements of both the Exchange Act and the principal
National Securities Exchange on which the Listed Shares are listed or
admitted to trading from time to time.
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SECTION 5.05 OFFICERS.
(a) OFFICERS; APPOINTMENT; QUALIFICATION; TERM OF OFFICE;
RESIGNATION; REMOVAL; VACANCIES. The Board of Directors shall appoint
Officers, which may include a President, a Secretary, a Controller and a
Treasurer. The Board of Directors may also elect one or more Vice
Presidents, one or more Assistant Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers and one or more other
Officers, and may give any of them such further designations or alternate
titles as it considers desirable. Each such Officer shall hold office
until his successor is appointed and qualified or until his earlier death,
resignation or removal. Any Officer may resign at any time upon written
notice to the Board of Directors or to the President or the Secretary of
the Company. Such resignation shall take effect at the time specified
therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective. The Board of
Directors may remove any Officer with or without cause at any time. Any
such removal shall be without prejudice to the contractual rights of such
Officer, if any, with the Company, but the appointment of an Officer shall
not of itself create contractual rights. Any number of offices may be held
by the same person. Any vacancy occurring in any office of the Company by
death, resignation, removal or otherwise may be filled for the unexpired
portion of the term by the Board of Directors at any regular or special
meeting.
(b) PRESIDENT. The President shall be the chief executive officer of
the Company and shall be responsible for the general management and
affairs of the Company and shall perform all duties incidental to such
office, whether required by Law or otherwise, and all such other duties as
are properly required of him by the Board of Directors. The President
shall make reports to the Board of Directors and the Shareholders and
shall see that all orders and resolutions of the Board of Directors and of
any committee thereof are carried into effect. The President shall have
full authority to execute all contracts, certificates, instruments or
other documents on behalf of the Company, except in cases where the
execution thereof shall be expressly delegated by the Board of Directors
or by this Agreement to some other Officer or agent of the Company or
shall be required by Law to be otherwise executed.
(c) VICE PRESIDENTS. Any Vice President, in order of seniority,
unless otherwise determined by the Board of Directors, shall, in the
absence or disability of the President, perform the duties and exercise
the powers of the President. The Vice President or Vice Presidents shall
also perform the usual and customary duties that pertain to the office of
Vice President and generally assist the President by executing contracts,
certificates, instruments or other documents and shall have such powers
and perform such duties as shall be delegated to them by the President or
assigned to them by the Board of Directors.
(d) CONTROLLER. The Controller shall be the chief financial officer
of the Company and shall be responsible for the financial reporting of the
Company and shall perform all duties incidental to such office, whether
required by Law or otherwise, and all
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such other duties as are delegated to him by the President or assigned to
him by the Board of Directors. The Controller shall make reports to the
Board of Directors regarding all financial reporting and accounting
matters and shall see that all orders and resolutions of the Board of
Directors and of any committee thereof relating to financial reporting and
accounting matters are carried in to effect.
(e) SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall record
all the proceedings of the meetings of the Shareholders and the Board of
Directors and of any committees thereof in a book to be kept for that
purpose; he shall see that all notices are duly given in accordance with
the provisions of this Agreement or as otherwise required by law; he shall
be custodian of the records of the Company; he may affix the official seal
of the Company, if any, to any document the execution of which, on behalf
of the Company, is duly authorized, and when so affixed may attest the
same; and, in general, he shall perform all duties incident to the office
of secretary of a corporation organized under the DGCL, and such other
duties as from time to time may be delegated to him by the President or
assigned to him by the Board of Directors or as may otherwise be provided
by Law. The Assistant Secretaries shall exercise the powers of the
Secretary during the Secretary's absence or inability or refusal to act.
If no Secretary or Assistant Secretary is appointed and serving, or in the
absence of the appointed Secretary and Assistant Secretary, such other
Officer as the Board of Directors shall select shall have the powers and
duties conferred upon the Secretary.
(f) TREASURER AND ASSISTANT TREASURERS. The Treasurer shall have
charge of and be responsible for all funds, securities, receipts and
disbursements of the Company, and shall deposit or cause to be deposited,
in the name of the Company, all moneys or other valuable effects in such
banks, trust companies or other depositories as shall, from time to time,
be selected by or under authority of the Board of Directors; if required
by the Board of Directors, he shall give a bond for the faithful discharge
of his duties, with such surety or sureties as the Board of Directors may
determine; he shall keep or cause to be kept full and accurate records of
all receipts and disbursements in books of the Company and shall render to
the Board of Directors, whenever requested, an account of the financial
condition of the Company; and, in general, he shall perform all the duties
incident to the office of treasurer of a corporation organized under the
DGCL and such other duties as may be delegated to him by the President or
assigned to him by the Board of Directors or as may otherwise be provided
by Law. The Assistant Treasurers shall exercise the powers of the
Treasurer during the Treasurer's absence or inability or refusal to act.
If no Treasurer or Assistant Treasurer is appointed and serving, or in the
absence of the appointed Treasurer and Assistant Treasurer, such other
Officer as the Board of Directors shall select shall have the powers and
duties conferred upon the Treasurer.
(g) OTHER OFFICERS. The other Officers, if any, of the Company shall
have such powers and duties in the management of the Company as shall be
stated in a resolution of the Board of Directors which is not inconsistent
with this Agreement and, to the extent not so stated, as generally pertain
to their respective offices, subject to the
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control of the Board of Directors. The Board of Directors may require any
Officer, agent or employee to give security for the faithful performance
of his duties.
(h) POWERS OF ATTORNEY. The Company may grant powers of attorney or
other authority as appropriate to establish and evidence the authority of
the Officers and other Persons.
(i) DELEGATION OF AUTHORITY. Unless otherwise provided by this
Agreement or by resolution of the Board of Directors, no Officer shall
have the power or authority to delegate to any Person such Officer's
rights and powers as an Officer to manage the business and affairs of the
Company.
SECTION 5.06 COMPENSATION. The Officers shall receive such compensation
for their services as may be designated by the Board of Directors. In addition,
the Officers shall be entitled to be reimbursed for out-of-pocket costs and
expenses incurred in the course of their service hereunder. The members of the
Board of Directors who are not also employees of the Company or any Affiliate
thereof shall receive such compensation for their services as Directors or
committee members as the Board of Directors shall determine. The members of the
Board of Directors who are also employees of the Company or any Affiliate
thereof shall receive no compensation for their services as Directors or
committee members. All the members of the Board of Directors shall be entitled
to be reimbursed for out-of-pocket costs and expenses incurred in the course of
their service hereunder.
SECTION 5.07 BUSINESS OPPORTUNITIES.
(a) No Indemnitee shall be expressly or implicitly restricted or
proscribed pursuant to this Agreement, by Law or otherwise from engaging
in other activities for profit, whether in the businesses engaged in by
the Company or any Shareholder or anticipated to be engaged in by the
Company or any Shareholder. Without limitation of and subject to the
foregoing, each Indemnitee shall have the right to engage in businesses of
every type and description and to engage in and possess an interest in
other business ventures of any and every type or description,
independently or with others, including, without limitation, business
interests and activities in direct competition with the Company or any
Shareholder, and none of the same shall breach any duty to the Company or
any Shareholder. Neither the Company, the Shareholder nor any other Person
shall have any rights by virtue of this Agreement, by Law or otherwise in
any business ventures of any Indemnitee and such Indemnitees shall have no
obligation to offer any interest in any such business ventures to the
Company, any Shareholder or any other Person.
(b) Without limitation of Section 5.07(a), and notwithstanding
anything to the contrary in this Agreement, the competitive activities of
Indemnitees and the limitations on the Company's activities described in
Section 2.04 are hereby approved by the Company and all Shareholders, and
it shall not be deemed to be a breach of the fiduciary duty (if any such
duty is owed) of the Board of Directors or the Record Holders of Voting
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Shares for the Board of Directors or the Record Holders of Voting Shares
to permit an Indemnitee to engage in a business opportunity in preference
to or to the exclusion of the Company or any other Shareholder, if such
activities are permitted by this Agreement.
SECTION 5.08 INTERESTED OFFICERS OR DIRECTORS. No contract or transaction
between the Company, on the one hand, and the Record Holders of Voting Shares,
any Affiliate thereof or any other Entity, on the other hand, in which an
Officer or Director Beneficially Owns an interest or of which such Officer or
Director is an Affiliate, or between the Company, on the one hand, and any of
its Officers or Directors, on the other hand, shall be void or voidable for this
reason or because the Officer or Director is present at or participates in the
meeting of the Board of Directors or committee thereof that authorizes the
contract or transaction, or because his vote is counted for such purpose, if
such contractor transaction is:
(a) approved by a committee of the Board of Directors comprised
solely of members who have no interest in the contract or transaction;
(b) on terms no less favorable than those generally being provided
to or available from unrelated third parties, as determined in the sole
discretion of the Board of Directors; or
(c) fair, taking into account the totality of the relationships
between the parties involved, including other transactions between the
parties, as determined in the sole discretion of the Board of Directors.
SECTION 5.09 RESOLUTIONS OF CONFLICTS OF INTEREST.
(a) Unless otherwise expressly provided in this Agreement, whenever
a potential conflict of interest exists or arises between the Company or
any of its Affiliates, on the one hand, and the Shareholders or any
Assignee, on the other hand, any resolution or course of action in respect
of such conflict of interest shall be permitted and deemed approved by all
Shareholders and Assignees, and shall not constitute a breach of this
Agreement or any duty stated or implied by law or equity, if the
resolution or course of action is or, by operation of this Agreement, is
deemed to be, fair and reasonable to the Company or the course of action
is permitted by the Omnibus Agreement. The Board of Directors shall be
authorized in connection with its resolution of any conflict of interest
to consider (i) the relative interests of any party to such conflict,
agreement, transaction or situation and the benefits and burdens relating
to such interest; (ii) any customary or accepted industry practices and
any customary or historical dealings with a particular Person; (iii) any
applicable generally accepted accounting or engineering practices or
principles; and (iv) such additional factors as the Board of Directors
determines in its sole discretion to be relevant, reasonable or
appropriate under the circumstances. Nothing contained in this Agreement,
however, is intended to nor shall it be construed to require the Board of
Directors to consider the interests of any Person other than the Company.
In the absence of bad faith by the Board of Directors, the resolution,
action or terms so made, taken or provided by the Board of Directors with
respect to such matter shall not
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constitute a breach of this Agreement or any other agreement contemplated
herein or a breach of any standard of care or duty imposed herein or
therein or under the Act or any other Law.
(b) Whenever this Agreement or any other agreement contemplated
hereby provides that the Board of Directors or the Company or any of its
Affiliates is permitted or required to make a decision (i) in its "sole
discretion" or "discretion" that it deems "necessary or appropriate" or
under a grant of similar authority or latitude, the Board of Directors,
the Company or such Affiliate, as applicable, shall be entitled to
consider only such interests and factors as it desires and shall have no
duty or obligation to give any consideration to any interest of, or
factors affecting, any Shareholder or any Assignee or (ii) in "good faith"
or under another express standard, the Board of Directors, the Company or
such Affiliate, as applicable, shall act under such express standard and
shall not be subject to any other or different standards imposed by this
Agreement, the Omnibus Agreement or any other agreement contemplated
hereby or under the Act or any other Law.
(c) Whenever a particular transaction, arrangement or resolution of
a conflict of interest is required under this Agreement to be "fair and
reasonable" to any Person, the fair and reasonable nature of such
transaction, arrangement or resolution shall be considered in the context
of all similar or related transactions.
SECTION 5.10 DUTIES OF RECORD HOLDERS OF VOTING SHARES AND DIRECTORS.
(a) Except as otherwise provided in this Agreement, the Record
Holders of Voting Shares, the Directors and any of their Affiliates shall
have no obligations whatsoever, by virtue of the relationships established
pursuant to this Agreement, to take or refrain from taking any action that
may impact the Company, the Shareholders or any Affiliate of the Company
or a Shareholder.
(b) The provisions of this Agreement, including Sections 5.07, 5.08,
5.09, 5.10 and 5.12, constitute an agreement to restrict or eliminate
fiduciary and other duties pursuant to the provisions of Section 18-1101
of the Act.
SECTION 5.11 INDEMNIFICATION.
(a) To the extent that the indemnification provisions of the
Partnership Agreement and the Delegation of Control Agreement do not fully
indemnify and hold harmless any of the Indemnitees, then to the fullest
extent permitted by Law but subject to the limitations expressly provided
in this Agreement, such Indemnitees shall be indemnified and held harmless
by the Company from and against any and all losses, claims, damages,
liabilities, joint or several, expenses (including legal fees and
expenses), judgments, fines, penalties, interest, settlements and other
amounts arising from any and all claims, demands, actions, suits or
proceedings, whether civil, criminal, administrative or investigative, in
which any Indemnitee may be involved, or is threatened to be
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involved, as a party or otherwise, by reason of its status as (i) a Record
Holder of Voting Shares or any Affiliate thereof, (ii) an officer,
director, employee, partner, agent or trustee of a Record Holder of Voting
Shares, the Company or any of their Affiliates, or (iii) a Person serving
at the request of the Company in another Entity in a similar capacity;
PROVIDED, HOWEVER, that in each case the Indemnitee acted in good faith
and in the manner which such Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Company, and, with respect to
any criminal proceeding, had no reasonable cause to believe such conduct
was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of NOLO CONTENDERE,
or its equivalent, shall not create a presumption that the Indemnitee
acted in a manner contrary to that specified above. Any indemnification
pursuant to this Section 5.11(a) shall be made only out of the assets of
the Company, it being agreed that no Shareholder, in its capacity as such,
shall be personally liable for such indemnification nor shall it have any
obligation to contribute or loan any monies or property to the Company to
enable the Company to effectuate such indemnification. The indemnification
provided by this Section 5.11(a) shall be secondary to any other rights to
which an Indemnitee may be entitled as contemplated under the Partnership
Agreement, the Delegation of Control Agreement or any other agreement,
pursuant to any vote of the Record Holders of Voting Shares, as a matter
of Law or otherwise, both as to actions in the Indemnitee's capacity as
(A) a Record Holder of Voting Shares or an Affiliate thereof, (B) an
officer, director, employee, partner, agent or trustee of a Record Holder
of Voting Shares, the Company or any of their respective Affiliates, or
(C) a Person serving at the request of the Company in another Entity in a
similar capacity, and as to actions in any other capacity (including any
capacity under the Underwriting Agreement), and shall continue as to an
Indemnitee who has ceased to serve in such capacity and shall inure to the
benefit of the heirs, successors, assigns and administrators of the
Indemnitee.
(b) To the fullest extent permitted by Law, expenses (including
legal fees and expenses) incurred by an Indemnitee who is indemnified
pursuant to Section 5.11(a) in defending any claim, demand, action, suit
or proceeding shall, from time to time, be advanced by the Company prior
to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company of a written undertaking by or on behalf of
the Indemnitee to repay such amount if it shall be determined that the
Indemnitee is not entitled to be indemnified as authorized in this Section
5.11.
(c) The Organizational Shareholder may purchase and maintain
insurance, on behalf of such Persons as the Board of Directors shall
determine, against any liability that may be asserted against, or expense
that may be incurred by, such Person in connection with the Company's
activities, regardless of whether the Company would have the power to
indemnify such Person against such liability under the provisions of this
Agreement.
(d) For purposes of this Section 5.11, the Company shall be deemed
to have requested an Indemnitee to serve as fiduciary of an employee
benefit plan whenever the performance by it of its duties to the Company
also imposes duties on, or otherwise involves services by, it to the plan
or participants or beneficiaries of the plan; excise taxes
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assessed on an Indemnitee with respect to an employee benefit plan
pursuant to applicable law shall constitute "fines" for purposes of
indemnities contemplated by Section 5.11(a); and action taken or omitted
by it with respect to an employee benefit plan in the performance of its
duties for a purpose reasonably believed by it to be in the interest of
the participants and beneficiaries of the plan shall be deemed to be for a
purpose which is in, or not opposed to, the best interests of the Company.
(e) In no event may an Indemnitee subject the Shareholders to
personal liability by reason of the indemnification provisions set forth
in this Agreement.
(f) An Indemnitee shall not be denied indemnification in whole or in
part contemplated under this Section 5.11 because the Indemnitee had an
interest in the transaction with respect to which the indemnification
applies if the transaction was otherwise permitted by the terms of this
Agreement.
(g) The provisions of this Section 5.11 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall
not be deemed to create any rights for the benefit of any other Persons.
(h) No amendment, modification or repeal of this Section 5.11 or any
provision hereof shall in any manner terminate, reduce or impair the right
of any past, present or future Indemnitee to be indemnified by the
Company, nor the obligation of the Company to indemnify any such
Indemnitee under and in accordance with the provisions of this Section
5.11 as in effect immediately prior to such amendment, modification or
repeal with respect to claims arising from or relating to matters
occurring, in whole or in part, prior to such amendment, modification or
repeal, regardless of when such claims may arise or be asserted.
Notwithstanding the foregoing, nothing herein shall limit the power or
authority of the Partnership to amend any provisions of the Partnership
Agreement regarding indemnification and reimbursement or similar
provisions.
SECTION 5.12 LIABILITY OF INDEMNITEES.
(a) Notwithstanding anything to the contrary set forth in this
Agreement, no Indemnitee shall be liable for monetary damages to the
Company, the Shareholders, the Assignees or any other Person for losses
sustained or liabilities incurred as a result of any act or omission
constituting a breach of such Indemnitee's fiduciary duty, in the event
that such a duty is found to exist, if such Indemnitee acted in good faith
and in the manner which such Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Company, and, with respect to
any criminal proceeding, had no reasonable cause to believe such conduct
was unlawful.
(b) Subject to its obligations and duties as set forth in this
Article 5, the Board of Directors and any committee thereof may exercise
any of the powers granted to it by this Agreement and perform any of the
duties imposed upon it hereunder either directly or by or through the
Company's agents, and neither the Board of Directors nor any
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committee thereof shall be responsible for any misconduct or negligence on
the part of any such agent appointed by the Board of Directors or any
committee thereof in good faith.
(c) Any amendment, modification or repeal of this Section 5.12 or
any provision hereof shall be prospective only and shall not in anyway
affect the limitations on liability under this Section 5.12 as in effect
immediately prior to such amendment, modification or repeal with respect
to claims arising from or relating to matters occurring, in whole or in
part, prior to such amendment, modification or repeal, regardless of when
such claims may arise or be asserted.
SECTION 5.13 FACSIMILE SIGNATURES. In addition to the provisions for the
use of facsimile signatures elsewhere specifically authorized in this Agreement,
facsimile signatures of any Officer of the Company may be used whenever and as
authorized by the Board of Directors.
ARTICLE VI
BOOKS AND RECORDS;
INFORMATION AND ACCOUNTS
SECTION 6.01 MAINTENANCE OF BOOKS AND RECORDS. The Company shall keep at
its principal office complete and accurate books and records of the Company,
supporting documentation of the transactions with respect to the conduct of the
Company's business and affairs and minutes of the proceedings of the Board of
Directors, the Shareholders and each committee of the Board of Directors. The
records shall include: (a) complete and accurate information regarding the state
of the business and financial condition of the Company; (b) a copy of this
Agreement and the Organizational Certificate; (c) a current list of the names
and last known business, residence, or mailing addresses of all Directors and
Officers; and (d) the Company's federal, state and local tax returns for the
Company's six most recent tax years.
SECTION 6.02 INFORMATION. In addition to the other rights specifically set
forth in this Agreement and subject to such reasonable standards (including
standards governing what information and documents are to be furnished and at
what time and location and at whose expense) as may be established by the Board
of Directors or any Officer, each Shareholder is entitled to all information to
which a member of a Delaware limited liability company is entitled to have
access pursuant to the Act under the circumstances and subject to the conditions
therein stated.
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SECTION 6.03 ACCOUNTS. The Board of Directors may establish, or direct or
authorize any Officer to establish, one or more separate bank and investment
accounts and arrangements for the Company, which shall be maintained in the
Company's name with financial institutions and firms that the Board of
Directors, or any Officer so directed or authorized, determines.
ARTICLE VII
DISSOLUTION, WINDING-UP AND TERMINATION; CERTAIN MERGERS
SECTION 7.01 DISSOLUTION.
(a) The Company shall dissolve and its affairs shall be wound up on
the first to occur of the following events (each a "DISSOLUTION EVENT"):
(i) entry of a decree of judicial dissolution of the Company
under Section 18-802 of the Act;
(ii) the approval of the Record Holders of a majority of the
Voting Shares and the Record Holders of a majority of the
Outstanding Listed Shares; or
(iii) the approval of the Record Holders of at least 66?% of
the Outstanding Listed Shares.
(b) Neither the death, dissolution or Bankruptcy of any Shareholder
nor the occurrence of any other event that causes a Shareholder to cease
to be a member of the Company shall constitute a Dissolution Event, and
the business of the Company shall be continued after such event.
SECTION 7.02 WINDING-UP AND TERMINATION.
(a) On the occurrence of a Dissolution Event, the Board of Directors
shall select one or more Persons to act as liquidator (the "LIQUIDATOR").
The Liquidator shall proceed diligently to wind up the affairs of the
Company and make final distributions as provided herein and in the Act.
The costs of winding up shall be borne as a Company expense. Until final
distribution, the Liquidator shall continue to operate the Company's
properties with all of the power and authority of the Board of Directors.
(b) Any assets of the Company remaining after satisfaction of the
liabilities of the Company (whether by payment or by reasonable provisions
for payment) shall be distributed on a share-for-share basis on all
Outstanding Company Securities.
(c) On completion of such final distribution, the Liquidator shall
file a certificate of cancellation as provided in Section 18-203 of the
Act, cancel any other filings made pursuant to Section 2.05, and take such
other actions as may be necessary to terminate the existence of the
Company.
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SECTION 7.03 MERGER RELATING TO CHANGE IN TAX STATUS.
(a) Subject to Sections 7.03(c) and 7.03(d) of this Agreement and
Section 16.6 of the Partnership Agreement, upon or at any time following
the occurrence of a Tax Status Event, the Record Holders of a majority of
Voting Shares shall have the right, which right they may exercise in their
discretion and without the approval of any other Shareholder, to cause a
merger of the Company with or into the Partnership or any Subsidiary of
the Partnership.
(b) If the Record Holders of a majority of Voting Shares determines
to exercise their right to cause a merger as described in Section 7.03(a),
they shall execute and/or file a Certificate of Merger pursuant to the Act
and shall execute and/or file, pursuant to the Act or other applicable
Law, all other documents, instruments or certificates deemed by them
necessary or appropriate to effectuate such merger and, subject to
Sections 7.03(c) and 7.03(d), such merger shall have the effects provided
in the Certificate of Merger, the Merger Agreement and under the Act and
any other applicable Law.
(c) The Record Holders of a majority of Voting Shares may cause a
merger of the Company as described in Section 7.03(b) only if they have
received a written opinion of counsel to the Company, which counsel and
form of opinion shall be reasonably satisfactory to the Board of
Directors, to the effect that, for U.S. federal income tax purposes, no
gain or loss should be recognized by a Shareholder that owns (for such tax
purposes) Listed Shares upon the receipt of Class A Common Units (or
another security that is in all respects substantially similar to Class A
Common Units) in exchange for Listed Shares pursuant to such merger,
except with respect to (i) any cash received in lieu of a fraction of a
Listed Share or (ii) the termination of any rights or obligations related
to the Purchase Provisions. In lieu of such opinion requirement, the
Record Holders of a majority of Voting Shares may cause a merger of the
Company as described in Section 7.03(b) if they or the Company have
received a ruling from the Internal Revenue Service to the effect set
forth in the preceding sentence.
(d) The Merger Agreement executed in connection with any merger of
the Company pursuant to this Section 7.03 shall provide that, at the
effective time of such merger, each Shareholder shall receive, in exchange
for the total number of Company Securities owned by such Shareholder, a
number of whole Class A Common Units and an amount of cash in lieu of
fractional Class A Common Units such that (i) the product of the number of
whole Class A Common Units so received by such Shareholder and the average
Closing Price of one Class A Common Unit for the 10 consecutive Trading
Day period ending on the fifth Trading Day prior to the effective time of
such merger, plus (ii) the amount of cash received by such Shareholder, is
equal to the product of the number of Company Securities owned by such
Shareholder and the average Closing Price of one Listed Share for the 10
consecutive Trading Day period ending on the fifth Trading Day prior to
the effective time of such merger. For purposes of this Section 7.03(d),
the term "Class A Common Units" shall include any other security received
in exchange for
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Company Securities in lieu of Class A Common Units that is in all respects
substantially similar to Class A Common Units.
ARTICLE VIII
AMENDMENT OF AGREEMENT;
SHAREHOLDER MEETINGS; RECORD DATE
SECTION 8.01 AMENDMENT PROCEDURES.
(a) Any provision of this Agreement, including the Purchase
Provisions, may be amended by the Record Holders of a majority of Voting
Shares without the approval of any other Shareholder; PROVIDED, HOWEVER,
that with respect to any matter for which the approval of the Record
Holders of Outstanding Listed Shares is required pursuant to Section
4.03(d), then such amendment shall not be effective until such amendment
has been approved by Record Holders of Outstanding Listed Shares whose
aggregate percentage constitutes not less than the percentage of Listed
Shares required to approve such matter.
(b) Any proposed amendment that requires the approval of the Record
Holders of Outstanding Listed Shares shall be explained in a writing that
contains the text of the proposed amendment. If such an amendment is
proposed, the Board of Directors shall seek the written approval of the
Record Holders of the requisite percentage of Outstanding Company
Securities or call a meeting of the Record Holders of Outstanding Company
Securities to consider and vote on such proposed amendment.
(c) The Board of Directors shall notify all Record Holders of
Outstanding Listed Shares upon final adoption of any proposed amendment
that requires the approval of the Record Holders of Outstanding Listed
Shares.
SECTION 8.02 MEETINGS. Except as otherwise provided in this Agreement, all
acts of the Shareholders to be taken hereunder shall be taken in the manner
provided in this Article 8. A meeting of the Record Holders of Outstanding
Company Securities for the transaction of such business as may properly come
before the meeting shall be held at such time and place as the Board of
Directors, the Chairman of the Board, the President or a Record Holder of Voting
Shares shall specify in the notice of the meeting; PROVIDED, HOWEVER, that a
meeting of the Record Holders of Voting Shares and Outstanding Listed Shares at
which such Record Holders shall vote pursuant to Sections 4.02(c) and 4.03(c),
respectively, shall be held at the same time and place as a meeting of the
record holder of I-Units at which the Company shall be entitled to vote as the
record holder of I-Units. No Record Holder of Listed Shares shall have the right
or power to call a meeting of Shareholders, to determine the time and place of
such a meeting or to present any matter to be voted upon by the Shareholders at
such a meeting; PROVIDED HOWEVER, that the Chairman of the Board, the President
or a Record Holder of Voting Shares, upon the written request of the Record
Holders of at least 10% of the Outstanding Listed Shares, shall call and give
notice of a meeting of Shareholders within 15 days of receiving such request for
the sole purpose of voting on a proposal to dissolve the Company in accordance
with Section 7.01(a)(iii).
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SECTION 8.03 NOTICE OF A MEETING. Notice of a meeting called pursuant to
Section 8.02 shall be given in writing by mail or other means of written
communication in accordance with Section 10.03 to the Record Holders of
Outstanding Company Securities for whom the meeting is called. The notice shall
be deemed to have been given at the time when deposited in the mail or sent by
other means of written communication.
SECTION 8.04 RECORD DATE. For purposes of determining the Shareholders
entitled to notice of, or to vote at, any meeting of the Shareholders or
entitled to vote by ballot or give approval of Company action in writing without
a meeting or entitled to exercise rights in respect of any lawful action of the
Shareholders, the Record Date shall not be less than 10 nor more than 60 days
before (a) the date of the meeting (unless such requirement conflicts with any
Law, in which case the Law shall govern), or (b) in the event that approvals are
sought without a meeting, the date by which the Shareholders are requested in
writing by the Board of Directors to give such approvals.
SECTION 8.05 ADJOURNMENT. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting and a new Record Date
need not be fixed if the time and place thereof are announced at the meeting at
which the adjournment is taken, unless such adjournment shall be for more than
45 days. At the adjourned meeting, the Company may transact any business that
might have been transacted at the original meeting. If the adjournment is for
more than 45 days or if a new Record Date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given in accordance with this Article
8.
SECTION 8.06 WAIVER OF NOTICE; APPROVAL OF MEETING; APPROVAL OF Minutes.
The transactions of any meeting of the Shareholders, however called and noticed,
and whenever held, shall be as valid as if they had been authorized at a meeting
duly held after regular call and notice, if a quorum is present either in person
or by proxy, and if, either before or after the meeting, Shareholders
representing such quorum who were present in person or by proxy and entitled to
vote, sign a written waiver of notice or an approval of the holding of the
meeting or an approval of the minutes thereof. All waivers and approvals shall
be filed with the Company records or made a part of the minutes of the meeting.
Attendance of a Shareholder at a meeting shall constitute a waiver of notice of
the meeting, except (a) when the Shareholder does not approve, at the beginning
of the meeting, of the transaction of any business because the meeting is not
lawfully called or convened; and (b) that attendance at a meeting is not a
waiver of any right to disapprove the consideration of matters required to be
included in the notice of the meeting, but not so included, if the disapproval
is expressly made at the meeting.
SECTION 8.07 QUORUM; VOTING. The Record Holders of a majority of those
Outstanding Company Securities for which a meeting has been called who are
entitled to vote and be present in person or by proxy shall constitute a quorum
at a meeting of the Shareholders of such class or classes. At any meeting of the
Shareholders duly called and held in accordance with this Agreement at which a
quorum is present, the act of the Record Holders of a majority of all
Outstanding Company Securities present and entitled to vote thereon shall be
deemed to constitute the act of the Record Holders of such Company Securities,
except as approval by holders of a different amount of Company Securities is
required by any other provision of this
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Agreement or the Purchase Provisions or by the Act, in which case the act of the
Shareholders holding a number of Outstanding Company Securities representing at
least such different amount shall be required. The Shareholders present at a
duly called or held meeting at which a quorum is present may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by the required percentage of Company Securities
specified in this Agreement. In the absence of a quorum, any meeting of the
Shareholders may be adjourned from time to time by the affirmative vote of the
Record Holders of a majority of the Outstanding Company Securities represented
either in person or by proxy.
SECTION 8.08 CONDUCT OF MEETING. The Board of Directors shall have sole
power and authority concerning the manner of conducting any meeting of the
Shareholders or the solicitation of approvals in writing, including the
determination of Persons entitled to vote, whether any particular Company
Securities are deemed to be Outstanding, the existence of a quorum, the
satisfaction of the requirements of this Article 8, the conduct of voting, the
validity and effect of any proxies and the determination of any controversies,
votes or challenges arising in connection with or during the meeting or voting.
The Board of Directors shall, if it has not elected a Chairman of the Board or
if the Chairman of the Board so elected is not present at the meeting or is
otherwise unable or unwilling to serve, designate a Person to serve as chairman
of any meeting and shall further designate a Person to take the minutes of any
meeting. All minutes shall be kept with the records of the Company. The Board of
Directors may make such other regulations consistent with applicable Law and
this Agreement as it may deem advisable concerning the conduct of any meeting of
the Shareholders or the solicitation of approvals in writing, including
regulations in regard to the appointment of proxies, the appointment and duties
of inspectors of votes and approvals, the submission and examination of proxies
and other evidence of the right to vote and the revocation of approvals in
writing.
SECTION 8.09 ACTION WITHOUT A MEETING. Any action that may be taken at a
meeting of Shareholders may be taken without a meeting if consents in writing
setting forth such action are signed by the Record Holders holding not less than
the minimum percentage of the Company Securities that would be necessary to
authorize or take such action at a meeting at which all the Outstanding Company
Securities entitled to vote on such action were present and voted. Prompt notice
of the taking of action without a meeting shall be given to all Record Holders
of Company Securities. The Board of Directors may specify that any written
consent submitted to Record Holders for the purpose of taking any action without
a meeting shall be returned to the Company within the time period, which shall
be not less than 20 days, specified by the Board of Directors. If a ballot
returned to the Company does not vote all of the Outstanding Company Securities
held by the Shareholder, the Company shall be deemed to have failed to receive a
ballot for the Outstanding Company Securities that were not voted. If approval
of the taking of any action by the Shareholders is solicited by any Person other
than by or on behalf of the Board of Directors, the written approvals shall have
no force and effect unless and until (a) they are deposited with the Company in
care of the Board of Directors, (b) approvals sufficient to take the action
proposed are dated as of a date not more than 90 days prior to the date
sufficient approvals are deposited with the Company and (c) an Opinion of
Counsel is delivered to the Board of Directors to the effect that the exercise
of such right and the action
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proposed to be taken with respect to any particular matter is otherwise
permissible under applicable Law, including any statutes then governing the
rights, duties and liabilities of the Company and the Shareholders.
Notwithstanding any of the foregoing to the contrary, no written consent of
Record Holders of Outstanding Listed Shares obtained pursuant to this Section
8.09 shall be valid for any purpose unless such written consent was first
presented to the Record Holders of Outstanding Listed Shares at the direction of
the Board of Directors in accordance with this Section 8.09.
SECTION 8.10 VOTING AND OTHER RIGHTS.
(a) Only those Record Holders of Outstanding Company Securities on
the Record Date set pursuant to Section 8.04 (and also subject to Section
4.03(e)) shall be entitled to notice of, and to vote at, a meeting of the
Shareholders or to act with respect to matters as to which the holders of
the Company Securities have the right to vote or to act. All references in
this Agreement to votes of, or other acts that may be taken by, the
holders of Outstanding Company Securities shall be deemed to be references
to the votes or acts of the Record Holders of such Outstanding Company
Securities.
(b) With respect to Company Securities that are held for a Person's
account by another Person (such as a broker, dealer, bank, trust company
or clearing corporation, or an agent of any of the foregoing), in whose
name such Company Securities are registered, such broker, dealer or other
agent shall, in exercising the voting rights in respect of such Company
Securities on any matter, and unless the arrangement between such Persons
provides otherwise, vote such Company Securities on the behalf, and at the
direction, of the Person who is the Beneficial Owner, and the Company
shall be entitled to assume it is so acting without further inquiry.
(c) With respect to any Shareholder action, broker non-votes and
other non-votes shall not be counted as votes "for" or "against" any
matter unless otherwise required by Law.
ARTICLE IX
COVENANTS
SECTION 9.01 COVENANTS.
(a) The Company:
(i) shall use the net proceeds from the Initial Public
Offering for the purchase of I-Units and other rights as
contemplated by this Agreement;
(ii) shall not, except as permitted by Article 7, sell, pledge
or otherwise transfer any I-Units or the other rights contemplated
by this Agreement;
(iii) shall not issue options, warrants or other securities
entitling the holder thereof to subscribe for or purchase Company
Securities;
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(iv) shall not borrow money or issue debt;
(v) shall not, except as permitted by Article 7, effect a
liquidation, merger, recapitalization or similar transaction
involving the Company; and
(vi) shall not purchase Company Securities.
(b) The covenants set forth in this Section 9.01 may be amended or
waived upon obtaining the approval of the Record Holders of a majority of
the Outstanding Listed Shares.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01 FISCAL YEAR. The fiscal year of the Company shall be the
calendar year.
SECTION 10.02 OFFSET. Whenever the Company is to pay any sum to any
Shareholder, any amounts that Shareholder owes the Company may be deducted from
that sum before payment.
SECTION 10.03 NOTICES. Except as expressly set forth to the contrary in
this Agreement, all notices, requests or consents provided for or permitted to
be given under this Agreement must be in writing and must be delivered to the
recipient in person, by courier or mail or by facsimile, telegram, telex,
cablegram or electronic transmission (as defined in Section 18-302(d) of the
Act), and a notice, request or consent given under this Agreement is effective
on receipt by the Person intended to receive it. Whenever any notice is required
to be given by Law, the Organizational Certificate or this Agreement, a written
waiver thereof, signed by the Person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice.
SECTION 10.04 ENTIRE AGREEMENT. This Agreement, including the Purchase
Provisions, amends and restates the Prior Agreement in its entirety and
constitutes the entire agreement among the Shareholders and the Company
pertaining to the subject matter hereof.
SECTION 10.05 WAIVER. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
SECTION 10.06 BINDING EFFECT. This Agreement is binding upon and shall
inure to the benefit of the Shareholders, the Beneficial Owners, the Assignees
and their respective executors, administrators, successors and legal
representatives.
SECTION 10.07 GOVERNING LAW; SEVERABILITY. This Agreement shall be
construed in accordance with, and governed by, the laws of the State of Delaware
without regard to the
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principles of conflicts of law. In the event of a direct conflict between the
provisions of this Agreement and (a) any provision of the Organizational
Certificate or (b) any mandatory, non-waivable provision of the Act, such
provision of the Organizational Certificate or the Act shall control. If any
provision of the Act provides that it may be varied or superseded in the limited
liability company agreement (or otherwise by agreement of the members or
managers of a limited liability company), such provision shall be deemed
superseded and waived in its entirety if this Agreement contains a provision
addressing the same issue or subject matter. If any provision of this Agreement
or the application thereof to any Person or circumstance is held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of that provision to other Persons or circumstances is not affected thereby and
that provision shall be enforced to the greatest extent permitted by Law.
SECTION 10.08 FURTHER ACTION. The parties shall execute and deliver all
documents, provide all information and take or refrain from taking action as
maybe necessary or appropriate to achieve the purposes of this Agreement.
SECTION 10.09 NO RIGHT TO ACTION FOR DISSOLUTION OR PARTITION. No
Shareholder has any right to maintain any action for dissolution of the Company
or for partition of the property of the Company.
SECTION 10.10 THIRD-PARTY BENEFICIARIES. The Shareholders, the Beneficial
Owners, the Assignees, the Indemnitees and their respective executors,
administrators, successors and legal representatives shall be considered to be
third-party beneficiaries of this Agreement, including the Purchase Provisions.
SECTION 10.11 CREDITORS. None of the provisions of this Agreement shall be
for the benefit of, or shall be enforceable by, any creditor of the Company in
its capacity as such.
SECTION 10.12 COUNTERPARTS. This Agreement may be executed in
counterparts, all of which together shall constitute an agreement binding on all
parties hereto, notwithstanding that all such parties are not signatories to the
original or the same counterpart. Each party shall become bound by this
Agreement immediately upon affixing its signature hereto or, in the case of a
Person acquiring a Company Security, upon (a) the acquisition by such Person of
the Certificate evidencing such Company Security or (b) the transfer of such
Company Security to such Person by book-entry transfer in accordance with
Section 3.04(b).
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first set forth above.
Organizational Shareholder and Record
Holder of Voting Shares:
ENBRIDGE ENERGY COMPANY, INC.
By: /s/ DAN C. TUTCHER
---------------------------------
Dan C. Tutcher
President
All holders of Listed Shares
By: /s/ DAN C. TUTCHER
---------------------------------
Dan C. Tutcher
Attorney-in-fact authorized by the
Board of Directors
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