EXHIBIT 10.5
30 April 2004
MEIF LUXEMBOURG HOLDINGS S.A.
COINVESTORS
MACQUARIE INVESTMENT MANAGEMENT (UK) LIMITED
MACQUARIE LUXEMBOURG WATER S.A.R.L
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SHAREHOLDERS' AGREEMENT
RELATING TO MACQUARIE LUXEMBOURG
WATER S.A.R.L
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SEW Coinvestment Agreement
CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION............................................... 1
Statutory provisions......................................................... 4
Clauses and Schedules........................................................ 4
Singular/plural.............................................................. 4
Headings..................................................................... 4
Agreed form.................................................................. 4
Exercise of powers of control................................................ 5
Permitted Transferees and Group Members...................................... 5
2. ESTABLISHMENT OF JOINT VENTURE............................................... 5
3. PURPOSE OF THE COMPANY....................................................... 6
4. RELATED AGREEMENTS........................................................... 6
5. THE BOARD AND MANAGEMENT..................................................... 6
Supervision by the Board..................................................... 6
6. APPOINTMENT OF THE ADVISER................................................... 7
7. RESERVED MATTERS............................................................. 7
Use of powers................................................................ 7
Reserved Shareholder Matters................................................. 7
Meetings of Shareholders..................................................... 7
8. FINANCIAL MATTERS............................................................ 8
Auditors..................................................................... 8
Accounting Reference Date.................................................... 8
Distribution of cash......................................................... 8
Accounting principles........................................................ 8
9. EXPENSES..................................................................... 8
10. TAX MATTERS.................................................................. 10
Co-operation................................................................. 10
Residence.................................................................... 10
11. REGULATORY MATTERS........................................................... 10
Co-operation................................................................. 10
Regulatory Action............................................................ 10
12. TRANSFER..................................................................... 11
General...................................................................... 11
Page I
Restriction on transfer...................................................... 11
Transfer of Shares - concurrent requirements................................. 11
Assignment of rights under Preferred Equity Certificate Agreement............ 11
13. ISSUE OF NEW SECURITIES...................................................... 11
14. FURTHER ASSURANCE............................................................ 13
15. NON-ASSIGNMENT............................................................... 13
16. WAIVER OF RIGHTS............................................................. 13
17. AMENDMENTS................................................................... 13
18. INVALIDITY................................................................... 13
19. NO PARTNERSHIP OR AGENCY..................................................... 13
20. ANNOUNCEMENTS................................................................ 14
21. COSTS........................................................................ 14
22. NO RELIANCE.................................................................. 14
23. CONFLICT WITH ARTICLES....................................................... 14
Supremacy of this Agreement.................................................. 14
24. DURATION..................................................................... 15
25. NOTICES...................................................................... 15
Notices...................................................................... 15
Notice details............................................................... 15
English language............................................................. 17
26. COUNTERPARTS................................................................. 17
27. RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999.................... 17
28. GOVERNING LAW AND JURISDICTION............................................... 17
SCHEDULE 1 DEED OF ADHERENCE....................................................... 18
SCHEDULE 2 ARTICLES OF THE COMPANY................................................. 22
SCHEDULE 3 TRANSFER OF SECURITIES.................................................. 23
SCHEDULE 4 THE COINVESTORS......................................................... 28
SEW Coinvestment Agreement
Page II
THIS AGREEMENT is made on 30 April 2004
BETWEEN
(1) THE PARTIES whose names and addresses are set out in Schedule 4 to this
Agreement (each a "COINVESTOR");
(2) MEIF LUXEMBOURG HOLDINGS S.A. a company organized and existing under the
laws of the Grand Duchy of Luxembourg, having its registered office at
▇▇▇, ▇▇▇▇▇ ▇'▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇");
(3) MACQUARIE INVESTMENT MANAGEMENT (UK) LIMITED incorporated under the laws
of England whose registered office is at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("ADVISER");
(4) MACQUARIE LUXEMBOURG WATER S.A.R.L, a company incorporated under the laws
of Luxembourg, whose registered office is at ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, -▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Grand-Duchy of Luxembourg ("the COMPANY").
WHEREAS
(A) The Coinvestors and MEIF have agreed to invest in South East Water ("SEW")
through the Company. MEIF is the controlling shareholder of the Company.
(B) The Company proposes to purchase from Macquarie Leasing (UK) Limited (a
subsidiary of Macquarie Bank Limited ("MBL")) 41,680,500 shares in the
Parent for (pound)41,680,501 comprising 75.1% of the issued share capital
of the Parent and to subscribe for (pound)41,680,501 nominal of unsecured
loan notes in the Parent (together, "THE PARENT SECURITIES").
(C) To provide the funds necessary to enable the Company to purchase the
shares in the Parent, the Coinvestors and MEIF will enter into the
Preferred Equity Certificate Agreements with the Company as described in
this Agreement.
(D) The parties are entering into this Agreement in order to set out the terms
governing the relationship of the Shareholders in the Company.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, and in the Recitals and Schedules, the Terms set out in
this clause 1 shall (unless the context requires otherwise) have the
following respective meanings:
ADVISER means Macquarie Investment Management (UK) Limited;
ARTICLES means the articles of association of the Company as amended from time
to time;
ASSOCIATES means in relation to a company, any member of its Group;
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AUDITORS means the auditors of the Company from time to time;
BOARD means the board of managers of the Company;
BUSINESS means the business to be carried on by the Company, as described in
clause 3;
BUSINESS DAY means a day on which clearing banks generally are open in
Luxembourg and London for a full range of business;
CHAIRMAN means the chairman from time to time of the Board and of the Company;
COMPANY means any body corporate, wherever incorporated;
COSTS has the meaning given in clause 9.1;
DEED OF ADHERENCE means a deed in the form set out in Schedule 1;
DRAG-ALONG REQUEST has the meaning given in paragraph 3.2 of Schedule 3;
DRAG-ALONG RIGHT has the meaning given in paragraph 3.1 of Schedule 3;
FINANCIAL YEAR means a financial period of the Company;
GROUP means, in relation to the Company or a Shareholder, that company and its
holding company and subsidiaries of it or of such holding company for the time
being;
HOLDING COMPANY shall have the meaning ascribed to that expression by sections
736 and 736A of the Companies ▇▇▇ ▇▇▇▇;
MANAGERS means the board of managers of the Company;
MEIF UK means MEIF UK Limited, a company incorporated in England and Wales
(registered number 4866246) with its registered office at ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
MBL has the meaning given in recital (B);
NON-DEFAULTING SHAREHOLDER has the meaning given in clause 2.3;
NON-MEIF SHAREHOLDER means each Shareholder other than MEIF;
OFFERED SECURITIES has the meaning given in paragraph 2.2 of Schedule 3;
PARENT means Macquarie Water UK Limited, a company incorporated in England and
Wales (registered number 4866247) whose registered office is at ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 9HD, the parent company of SEW;
PARENT SECURITIES has the meaning given in recital (B);
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PERMITTED TRANSFEREE means any future shareholder in the Company who has
acquired its Shares pursuant to a transfer of such Shares in accordance with
clause 1.2 of Schedule 3;
PREFERRED EQUITY CERTIFICATE AGREEMENTS means the agreements in the agreed form
between the Company and each Shareholder (including, for the avoidance of doubt,
the preferred equity certificate agreement between MEIF and the Company) under
which the Shareholders lend money to the Company;
PREFERRED EQUITY CERTIFICATES means the preferred equity certificates of the
Company constituted by the Preferred Equity Certificate Agreements or the
nominal amount of them for the time being outstanding or a specific proportion
of them, as the context may require;
PRO RATA PROPORTION has the meaning given in paragraph 2.6 of Schedule 3;
PROPOSED TRANSFEREE has the meaning given in paragraph 3.1 of Schedule 3;
PURCHASING SHAREHOLDERS has the meaning given in paragraph 2.8 of Schedule 3;
QUALIFYING CORPORATE CAPITAL means all corporate capital of the Company acquired
pursuant to clauses 2.1, 2.2 and 13.3(a);
REGULATORY ACTION means:
(a) any order of a court of competent jurisdiction; or
(b) any order, decision or conclusive view made, given or expressed by a
competent supranational, governmental or regulatory authority or agency;
or
(c) an enactment of a legislative body which:
(i) materially prohibits or restricts completion of the Share Purchase
Agreement; or
(ii) would materially prohibit or restrict the carrying on of the
business of the Company as contemplated by this Agreement;
REMAINING OFFERED SECURITIES has the meaning given in paragraph 2.6 of Schedule
3;
RESERVED SHAREHOLDER MATTERS has the meaning given in clause 7.1;
SALE SECURITIES has the meaning given in paragraph 2.1 of Schedule 3;
SECURITIES means Shares and/or Preferred Equity Certificates;
SHARES means ordinary shares of(euro)25 nominal value each in the capital of the
Company;
SHAREHOLDERS means, for so long as they hold Shares in the Company, MEIF and the
Coinvestors and any person to whom any of the Shares may be issued or
transferred in accordance with the Articles and this Agreement;
SEW Coinvestment Agreement
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SHARE PURCHASE AGREEMENT means the agreement in the agreed form to be entered
into between the Company, MBL and Macquarie Leasing (UK) Limited in relation to
the purchase by the Company of certain shares in the Parent and the subscription
for certain loan notes as set out in Recital B;
SPA means the agreements in the agreed form to be entered into between each of
the Shareholders and MEIF UK regarding the purchase by the Shareholders of the
entire issued share capital of the Company;
SUBSIDIARY shall have the meaning ascribed to that expression by sections 736
and 736A of the Companies ▇▇▇ ▇▇▇▇;
TRANSFER DETAILS has the meaning given in paragraph 2.2 of Schedule 3;
TRANSFEREE has the meaning given in paragraph 2.9 of Schedule 3;
TRANSFEROR has the meaning given in paragraph 2.1 of Schedule 3; and
WRITTEN OFFER has the meaning given in paragraph 2.2 of Schedule 3.
STATUTORY PROVISIONS
1.2 Except where the context requires otherwise, references to statutory
provisions shall be construed as references to those provisions as
respectively amended or re-enacted or as their application is modified by
other provisions (whether before or after the date hereof) from time to
time.
CLAUSES AND SCHEDULES
1.3 Except where the context requires otherwise, references to clauses,
paragraphs and Schedules are to clauses, paragraphs or schedules to this
Agreement.
SINGULAR/PLURAL
1.4 Words denoting the singular number include the plural number and vice
versa, words denoting the masculine gender include the feminine gender and
words denoting persons include companies.
HEADINGS
1.5 Headings are inserted for convenience only and shall not affect the
construction of this Agreement or its Schedules.
AGREED FORM
1.6 Any reference to an agreed form is to the form of the relevant document
agreed between all the Shareholders, or to a substantially similar form,
signed on the Shareholders' behalf for the purpose of identification
either before the signature of this Agreement (with such
SEW Coinvestment Agreement
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amendments (if any) as may subsequently be provided for in this Agreement)
or subsequently.
EXERCISE OF POWERS OF CONTROL
1.7 Where any obligation pursuant to this Agreement is expressed to be
undertaken or assumed by any Shareholder, such obligation shall be
construed as requiring the Shareholder concerned to exercise all rights
and powers of control over the affairs of any other person which that
Shareholder is able to exercise (whether directly or indirectly) in order
to secure performance of such obligation.
PERMITTED TRANSFEREES AND GROUP MEMBERS
1.8 The rights and obligations of a party pursuant to this Agreement shall, in
relation to a party, extend to and incorporate any Permitted Transferee or
any member of the same Group of such party.
2. ESTABLISHMENT OF JOINT VENTURE
2.1 Each of the Shareholders have acquired from MEIF UK the number of Shares
set out below against its name pursuant to the SPA which constitute the
entire issued share capital of the Company:
SHAREHOLDER NUMBER OF SHARES PERCENTAGE OF SHARES
(%)
[REDACTED PURSUANT TO CONFIDENTIAL
TREATMENT REQUEST] 125 16.6445
[REDACTED PURSUANT TO CONFIDENTIAL 125 16.6445
TREATMENT REQUEST]
MEIF 501 66.7110
--- --------
Total 751 100.0000
2.2 Each of the Shareholders has agreed to subscribe for Preferred Equity
Certificates issued by the Company pursuant to the Preferred Equity
Certificate Agreements in the amount set out below against its name on the
terms of the Preferred Equity Certificate between that Shareholder and the
Company:
SHAREHOLDER AMOUNT TO BE SUBSCRIBED PERCENTAGE OF PREFERRED
(pound) EQUITY CERTIFICATES (%)
[REDACTED PURSUANT TO CONFIDENTIAL
TREATMENT REQUEST] 13,924,227 16.6445
[REDACTED PURSUANT TO CONFIDENTIAL 13,924,227 16.6445
TREATMENT REQUEST]
MEIF 55,808,303 66.7110
---------- --------
Total 83,656,757 100.0000
CONFIDENTIAL TREATMENT REQUESTED BY MACQUARIE INFRASTRUCTURE COMPANY TRUST AND
MACQUARIE INFRASTRUCTURE COMPANY LLC
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2.3 If a Shareholder:
(a) fails to pay up subscription monies under its Preferred Equity
Certificate Agreement with the Company in accordance with the terms
of and by the date specified in that Agreement; and/or
(b) fails to pay up acquisition funds on Shares pursuant to the SPA;
then such Shareholder agrees to severally indemnify the Company and
each other Shareholder (NON-DEFAULTING SHAREHOLDER) against any and
all loss, damage, cost, liability, demand, charge or expense
(including legal fees) suffered or incurred by the Company and/or
the Non-Defaulting Shareholders in connection with or arising out of
the failure of the Company to complete the Share Purchase Agreement.
3. PURPOSE OF THE COMPANY
The business of the Company shall be to acquire and hold the Parent
Securities.
4. RELATED AGREEMENTS
The parties shall ensure that immediately upon execution of this
Agreement:
(a) the Company enters into the Sale and Purchase Agreement and all
agreements and documents ancillary thereto;
(b) the Shareholders shall and the Company shall procure that MEIF UK
enters into the SPA; and
(c) the Company and the Shareholders enter into the Preferred Equity
Certificate Agreements.
5. THE BOARD AND MANAGEMENT
SUPERVISION BY THE BOARD
5.1 The Board shall (subject to the requirements of clause 7) be responsible
for the overall direction and supervision of the Company.
5.2 Subject to the requirements of any relevant law which provides otherwise,
the Board shall be responsible for all decisions relating to the
management of the Company except for Reserved Shareholder Matters.
5.3 The Board of Managers shall be appointed by MEIF, acting through its
delegate, the Adviser (and such other person who may be acting as manager
of MEIF from time to time). The Shareholders authorise MEIF and
irrevocably grant a power of attorney to it to exercise any right to vote
attaching to their shares in relation to the appointment of
SEW Coinvestment Agreement
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directors including the execution of forms of proxy and/or powers of
attorney to ensure that MEIF is able to exercise such powers.
6. APPOINTMENT OF THE ADVISER
Each Shareholder agrees to procure the appointment of the Adviser and the
Adviser agrees to accept such appointment on the terms set out herein and
pursuant to separate Advisory Agreements between each Shareholder and the
Adviser.
7. RESERVED MATTERS
USE OF POWERS
7.1 The Shareholders shall use their respective powers to ensure, so far as
they are legally able, that no action or decision is taken (whether by the
Board, the Company, any subsidiary of the Company or any of the officers
or managers of the Company or any subsidiary) relating to any of the
matters specified in clause 7.2 (RESERVED SHAREHOLDER MATTERS) unless such
matter is approved by a resolution of Shareholders at a general meeting of
the Company. At the general meeting the outcome of the resolution will be
determined by the majority of Shareholders representing both (i)
three-quarters of the corporate capital and (ii) greater than
three-quarters of the Qualifying Corporate Capital in the case of the
Reserved Shareholder Matters in clause 7.2(a), (b) or (c) or all of the
Shareholders in the case of the Reserved Shareholder Matters in clause
7.2(d), provided in each case that the relevant notice requirements
imposed by Luxembourg law for the holding of meetings are satisfied.
RESERVED SHAREHOLDER MATTERS
7.2 The Reserved Shareholder Matters are:
(a) altering the Articles;
(b) changing the issued share capital or Preferred Equity Certificates
of the Company or the rights attaching thereto;
(c) except as required by law, the placing of the Company in liquidation
or other external administration or dissolution of the Company; and
(d) the Company engaging in a business other than investing directly or
indirectly in SEW or realising such investment.
MEETINGS OF SHAREHOLDERS
7.3 General meetings of Shareholders shall take place in accordance with the
applicable provisions of the Articles including on the basis that the
notice of meeting shall set out in reasonable detail the matters to be
discussed (unless the Shareholders agree otherwise) and shall entitle a
Shareholder to attend in person or by proxy.
SEW Coinvestment Agreement
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8. FINANCIAL MATTERS
AUDITORS
8.1 The auditors of the Company shall be PricewaterhouseCoopers or such firm
of accountants as may be agreed from time to time by the Board.
ACCOUNTING REFERENCE DATE
8.2 The accounting reference date of the Company shall be 31 March and each
Financial Year of the Company shall end on 31 March in each year or such
other date as the Shareholders may from time to time determine.
DISTRIBUTION OF CASH
8.3 Each Shareholder will use all powers vested in it as a shareholder of the
Company to procure that and the Company shall procure that the Parent,
subject always to the Company and the Parent (as the case may be) having
retained, in the opinion of its directors, sufficient financial resources
to meet its normal and foreseeable working capital requirements for the
following financial year and having made adequate provision for
liabilities in accordance with International Accounting Standards
consistently applied (and having respected the legal reserve foreseen by
Luxembourg company law), the Parent shall make to the Company and the
Company will make to the Shareholders the maximum possible distributions
of available cash each year, whether by repayment of interest or capital
on Shareholder loans, cash settlement or other payments pursuant to the
Preferred Equity Certificates, by way of interest, dividends or otherwise.
Any distribution by the Company to Shareholders, whether by way of
interest, dividend or otherwise shall be made in accordance with the terms
of the Preferred Equity Certificate Agreements and otherwise pro rata
according to their respective holdings of Shares.
ACCOUNTING PRINCIPLES
8.4 Without prejudice to the Company's obligations to draw up and submit to
the Shareholders annual financial statements and, as the case may be,
consolidated accounts in accordance with Luxembourg law, the Company's
accounts shall be prepared in accordance with International Accounting
Standards.
9. EXPENSES
9.1 Company expenses
In addition to any other right of indemnity which it may have under this
Agreement or at law, the Adviser and its delegates and agents shall be
indemnified and entitled to be reimbursed for, or have paid, in each case,
by the Company on demand, all reasonable costs incurred in relation to the
proper performance of its powers and duties under this Agreement or in
relation to the administration of the Company (in either case, whether by
SEW Coinvestment Agreement
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the Adviser or any permitted delegate or agent of the Adviser) ("Costs").
This includes but is not limited to reasonable Costs as incurred in
connection with:
(a) the administration of the Company, including travel and
accommodation expenses and expenses in connection with any register
or the valuation of any asset of the Company or the Company as a
whole;
(b) borrowing arrangements on behalf of the Company or guarantees in
connection with the Company, including hedging costs;
(c) the admission of the Company to and compliance with the listing
rules of any stock exchange;
(d) convening and holding meetings of Shareholders, holders of Preferred
Equity Certificates or other interests in the Company, the
implementation of any resolutions and communications with
Shareholders or option holders and attending any meetings of the
Company;
(e) taxes (including any amount charged by a supplier of goods or
services or both to the Adviser by way of or as a reimbursement for
VAT) and financial institution fees;
(f) the engagement of agents (including real estate agents and managing
agents), valuers, contractors and advisers (including accounting,
auditing, consulting, financial, tax and legal advisers) whether or
not the agents, valuers, contractors or advisers are Associates of
the Adviser provided that the arrangements with Associates shall be
on an arm's length basis and only for services that the Adviser is
not already obliged to provide pursuant to its advisory agreement
with any Coinvestor;
(g) preparation and audit of the taxation returns, financial statements
and accounts of the Company;
(h) termination of this Agreement (other than due to the Adviser's
default under this Agreement) and the retirement or removal of the
Adviser and the appointment of a replacement (but only if the Board
requests the Adviser to perform functions in relation to the
appointment of the replacement);
(i) any court proceedings, arbitration or other dispute concerning the
Company and/or the Adviser (other than in respect of actions
successfully brought against the Adviser or any employee, agent or
contractor of the Adviser);
(j) all damages, expenses, payments, legal and other costs and
disbursements incurred by the Adviser in relation to or in
connection with any claim, dispute or litigation arising as a result
of or in connection with any untrue representation or warranty
contained in any document relating to any investment by the Company
and any offering document for any bond issue or other borrowing
except where the claim, dispute or litigation arises out of the
negligence, fraud or wilful default
SEW Coinvestment Agreement
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of, or breach of this Agreement by, the Adviser or any employee,
agent or contractor of the Adviser; and
(k) recording, managing and resolving disputes, except in circumstances
where the dispute is between the Company and the Adviser and the
dispute is resolved or determined in favour of the Company, in which
case any expenses paid or reimbursed under this clause must be
repaid.
10. TAX MATTERS
CO-OPERATION
10.1 Each of the Shareholders agrees to co-operate, and undertakes to procure
that its subsidiaries shall co-operate, to such extent as may be
reasonably requested in connection with the making of any returns, claims,
or elections for taxation purposes by the Company in relation to the
taxation affairs of the Company or the Company's Group.
RESIDENCE
10.2 Each of the Shareholders agrees with the Company and each other
Shareholder that the Company shall at all times be resident in Luxembourg
for tax purposes and shall not be resident in any other country for tax
purposes.
11. REGULATORY MATTERS
CO-OPERATION
11.1 The parties shall co-operate with each other and the Adviser to ensure
that all information necessary or desirable for making (or responding to
any requests for further information following) any notification or filing
made in respect of this Agreement, or the transactions contemplated by it,
is supplied to the party dealing with such notification and filing and
that they are properly, accurately and promptly made.
REGULATORY ACTION
11.2 If any Regulatory Action material to the Company or its Business is taken
or threatened, the Shareholders shall promptly meet to discuss the
situation and the action to be taken as a result and whether any
modification to the terms of this Agreement (or any agreement entered into
pursuant to this Agreement) should be made in order that any requirement
(whether as a condition of giving any approval, exemption, clearance or
consent or otherwise) of any regulatory authority may be reconciled with,
and within the intended scope of, the business arrangement contemplated by
this Agreement. The Shareholders shall co-operate to give effect to any
agreed modifications.
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12. TRANSFER
GENERAL
12.1 The provisions of this clause 12 and Schedule 3 apply in relation to any
transfer or proposed transfer of Securities in the Company.
RESTRICTION ON TRANSFER
12.2 Except as permitted by the provisions of Schedule 3 no Shareholder (nor
any member of its Group) shall:
(a) transfer any Securities;
(b) grant, declare, create, deal in or dispose of any right, obligation
or interest in any Securities; or
(c) create or permit to exist any pledge, lien, fixed or floating charge
or other encumbrance (save for any arising by operation of law) over
any Securities.
TRANSFER OF SHARES - CONCURRENT REQUIREMENTS
12.3 No Shareholder shall transfer any Shares, the Company shall not register
any transfer of Shares and the Shareholders shall procure that no transfer
of Shares is registered by the Managers, unless the transferring
Shareholder concurrently:
(a) assigns its rights and obligations under its Preferred Equity
Certificate Agreement in the same proportion as the proportion of
the Shareholder's total Shares being transferred by that
Shareholder; and/or
(b) to the extent that the proposed transferee of such Shares is not
already a party to this Agreement, subject to such party entering
into a Deed of Adherence.
ASSIGNMENT OF RIGHTS UNDER PREFERRED EQUITY CERTIFICATE AGREEMENT
12.4 No Shareholder shall assign any proportion of its rights and obligations
under its Preferred Equity Certificate Agreement to any assignee unless
the assigning Shareholder concurrently transfers to the assignee, in
accordance with this clause 12 and Schedule 3, the same proportion of the
Shareholder's total Shares as the proportion of the Shareholder's rights
and obligations under the Preferred Equity Certificate Agreement which the
Shareholder seeks to assign to the assignee.
13. ISSUE OF NEW SECURITIES
13.1 Subject to clause 13.3, the Shareholders shall procure that the Company
does not issue any new shares or Preferred Equity Certificates (or similar
instruments) in itself or cause or allow any new shares in any subsidiary
to be issued (NEW SHARES) unless it has first invited the Shareholders to
subscribe for the New Shares pro rata to their current holdings
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of Shares. If a Shareholder does not subscribe for its pro rata
entitlement to the New Shares or any portion thereof within thirty (30)
Business Days of the Company issuing an invitation to subscribe, the
Shareholders shall procure that the Company invites MEIF to subscribe for
the New Shares which have not been subscribed for (the UNSOLD SHARES).
MEIF shall have seven (7) Business Days to subscribe for the Unsold
Shares. If MEIF does not subscribe for any number of the Unsold Shares
within seven (7) Business Days, the Company shall invite Non-MEIF
Shareholders to subscribe for those Unsold Shares (the REMAINING UNSOLD
SHARES). In the event that Non-MEIF Shareholders deliver notices to
subscribe for more than the number of Remaining Unsold Shares, the Company
shall allot the Remaining Unsold Shares in accordance with the ratio of
the amount of Remaining Unsold Shares subscribed for by such Non-MEIF
Shareholder to the total number of Remaining Unsold Shares subscribed for
by all Non-MEIF Shareholders, provided that each accepting Non-MEIF
Shareholder shall be entitled to subscribe for a minimum of the lesser of
its Pro Rata Proportion and the proportion that the number of Remaining
Unsold Shares subscribed for by the Non-MEIF Shareholder bears to the
total number of Remaining Unsold Shares. For the purposes of this clause
13, PRO RATA PROPORTION means, with respect to each Non-MEIF Shareholder,
that number of Securities which equals the Remaining Unsold Shares
multiplied by a fraction the numerator of which shall be the number of
Shares owned by such Non-MEIF Shareholder and the denominator of which
shall be the aggregate number of Shares owned by all Non-MEIF
Shareholders.
13.2 Subject to clause 13.3, if there are any Remaining Unsold Shares remaining
after the procedure in clause 13.1 has been completed, the Company may
issue those Remaining Unsold Shares on the same terms and conditions as
offered to the Shareholders pursuant to clause 13.1 to a third party
within seven (7) Business Days, provided that the third party executes a
Deed of Adherence.
13.3 The Company shall be free to issue New Shares (and the Shareholders shall
not be entitled to participate in or restrict any such issue):
(a) to any third party or parties nominated by the Adviser in order to
fund the purchase of the Retained Shares (as defined in paragraph
4.3 of Schedule 3); or
(b) in relation to up to 5 per cent of the fully diluted share capital
of any subsidiary (whether by way of option, issue or otherwise) to
employees, consultants and directors of the Company (or any of its
subsidiaries); or
(c) pursuant to any group re-structuring or reorganisation which results
in the Company directly or indirectly owning before such event, the
same economic rights in such subsidiary after such event, as it did
before
provided that to the extent that the proposed subscriber for such New
Shares is not already a party to this Agreement, it executes a Deed of
Adherence.
SEW Coinvestment Agreement
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14. FURTHER ASSURANCE
14.1 So far as it is legally able, each Shareholder agrees with the other
Shareholders to exercise all voting rights and powers (direct or indirect)
available to it in relation to any person and/or the Company to ensure
that the provisions of this Agreement (and the other agreements referred
to in this Agreement) are completely and punctually fulfilled, observed
and performed and generally that full effect is given to the principles
set out in this Agreement.
15. NON-ASSIGNMENT
15.1 No Shareholder, nor the Company, nor any guarantor shall, nor shall
purport to, assign, transfer, charge or otherwise deal with all or any of
its rights and/or obligations under this Agreement nor grant, declare,
create or dispose of any right or interest in it in whole or in part
(otherwise than pursuant to a transfer of Shares or assignment of rights
and obligations under a Shareholder's Preferred Equity Certificate
Agreement in accordance with the terms of this Agreement).
16. WAIVER OF RIGHTS
16.1 No waiver by a party of a failure by the other party to perform any
provision of this Agreement operates or is to be construed as a waiver in
respect of any other failure whether of a like or different character.
17. AMENDMENTS
17.1 A variation of this Agreement (or of any of the documents referred to in
it) is valid only if it is in writing and signed by or on behalf of each
party (except that a variation of any provision of this Agreement which
only affects the respective rights and obligations of the Shareholders as
between themselves does not need the Company's agreement).
18. INVALIDITY
18.1 If any provision of this Agreement is or is held to be invalid or
unenforceable, then so far as it is invalid or unenforceable it has no
effect and is deemed not to be included in this Agreement. This shall not
invalidate any of the remaining provisions of this Agreement.
19. NO PARTNERSHIP OR AGENCY
19.1 Nothing in this Agreement (or any of the arrangements contemplated by it)
is or shall be deemed to constitute a partnership between the Shareholders
nor, except as may be expressly set out in it, constitute any party the
agent of the other for any purpose.
19.2 Unless the Shareholders agree otherwise in writing, none of them shall:
(a) enter into any contracts or commitments with third parties as agent
for the Company or for any of the other Shareholders; or
SEW Coinvestment Agreement
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(b) describe itself as such an agent or in any way hold itself out as
being such an agent.
20. ANNOUNCEMENTS
20.1 No formal public announcement or press release in connection with the
signature or subject matter of this Agreement shall (subject to clause
20.2) be made or issued by or on behalf of any party or any member of its
Group without the prior written approval of the Shareholders (such
approval not to be unreasonably withheld or delayed).
20.2 If a party has an obligation to make or issue any announcement required by
law or by any stock exchange or by any governmental authority, the
relevant party shall give the other parties every reasonable opportunity
to comment on any announcement or release before it is made or issued
(provided that this shall not have the effect of preventing the party
making the announcement or release from complying with its legal and/or
stock exchange obligations).
21. COSTS
21.1 Each of the Shareholders shall pay its own legal and accountancy costs,
charges and expenses (including taxation) incurred in connection with
negotiating, preparing and implementing this Agreement and the
transactions contemplated by it.
22. NO RELIANCE
22.1 No party has relied or has been induced to enter into this Agreement in
reliance on any representation, warranty or undertaking which is not
expressly set out or referred to in this Agreement.
22.2 A party may claim in contract for breach of warranty under this Agreement
but no party shall have any claim or remedy in respect of
misrepresentation (whether negligent or otherwise and whether made prior
to, and/or in, this Agreement) or untrue statement made by the other
party. Liability for, or any remedy in respect of, fraudulent
misrepresentation is not excluded.
23. CONFLICT WITH ARTICLES
SUPREMACY OF THIS AGREEMENT
23.1 If the provisions of this Agreement conflict with the Articles, the
provisions of this Agreement shall prevail as between the Shareholders.
The Shareholders shall:
(a) exercise all voting and other rights and powers available to them to
give effect to the provisions of this Agreement; and
(b) (if necessary) ensure that any required amendment is made to the
Articles.
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24. DURATION
24.1 This Agreement shall terminate upon a resolution being passed to wind-up
the Company in accordance with this agreement. In such event, the
Shareholders shall endeavour to agree a suitable basis for dealing with
the Company's interests and assets. Subject to this clause 24, the
Shareholders shall co-operate (but without any obligation to provide any
additional finance) with a view to enabling all existing obligations of
the Company to be completed insofar as the Company's resources allow.
25. NOTICES
NOTICES
25.1 Any notice or other formal communication to be given under this Agreement
shall be in writing and signed by or on behalf of the party giving it. It
shall be:
(a) sent by fax to the relevant number set out in clause 25.2; or
(b) delivered by hand or sent by courier to the relevant address in
clause 25.2.
In each case it shall be marked for the attention of the relevant party
set out in clause 25.2 (or as otherwise notified from time to time under
this Agreement), with a copy to MEIF as set out in that clause. Any notice
given by hand delivery, fax or courier shall be deemed to have been duly
given:
(c) if hand delivered, when delivered;
(d) if sent by fax, twenty four (12) hours after the time of despatch;
(e) if sent by courier, on the fourth Business Day from the date of
posting
unless there is evidence that it was received earlier than this and
provided that, where the delivery or transmission occurs after 6 pm on a
Business Day or on a day which is not a Business Day, service shall be
deemed to occur at 9 am on the next following Business Day. References to
time in this clause are to local time in the country of the addressee.
NOTICE DETAILS
25.2 The addresses and fax numbers of the parties for the purpose of clause
25.1 are:
(a) COINVESTORS:
(i) [REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
ADDRESS: [REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
CONFIDENTIAL TREATMENT REQUESTED BY MACQUARIE INFRASTRUCTURE COMPANY TRUST
AND MACQUARIE INFRASTRUCTURE COMPANY LLC
SEW Coinvestment Agreement
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Attention: [REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
Fax: [REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
(ii) [REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
Address: [REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
Attention: [REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
Fax: [REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
(b) MEIF:
Address: ▇▇▇, ▇▇▇▇▇ ▇'▇▇▇▇, ▇-▇▇▇▇
Attention:
Fax:
with a copy to the Adviser
(c) The Company:
Address: ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇▇
with a copy to the Adviser
(d) The Adviser:
Address: ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Annabelle Helps
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
SEW Coinvestment Agreement
CONFIDENTIAL TREATMENT REQUESTED BY MACQUARIE INFRASTRUCTURE COMPANY TRUST AND
MACQUARIE INFRASTRUCTURE COMPANY LLC
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ENGLISH LANGUAGE
25.3 All notices or formal communications under or in connection with this
Agreement shall be in the English language or, if in any other language,
accompanied by a translation into English. In the event of any conflict
between the English text and the text in any other language, the English
text shall prevail.
26. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which shall be an original
but all of which together shall constitute one and the same instrument.
27. RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ▇▇▇ ▇▇▇▇
27.1 The parties intend that this Agreement may be enforced pursuant to the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ by the Adviser, to the extent
that this Agreement grants rights to the Adviser.
27.2 No person who is not a party to this Agreement, other than the Adviser,
shall have rights under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
to enforce any of its terms.
28. GOVERNING LAW AND JURISDICTION
28.1 This Agreement shall be governed by and construed in accordance with the
laws of England (without prejudice to the mandatory provisions of
Luxembourg law) and shall be subject to the exclusive jurisdiction of the
English Courts.
AS WITNESS this Agreement has been signed by the duly authorised representatives
of the parties the day and year first before written.
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SCHEDULE 1
DEED OF ADHERENCE
THIS DEED is made on [ ]
BY [ ] of [ ] (the COVENANTOR) [and
BY [ ] of [ ] (the GUARANTOR)]
WHEREAS:
(A) On [ ] 2004 the persons in the schedule hereto entered into a
shareholders' agreement governing their relationship as shareholders in
Macquarie Luxembourg Water S.A.R.L (the COMPANY) and establishing the
manner in which the affairs of the Company would be conducted (the
SHAREHOLDERS' AGREEMENT).
(B) The Covenantor wishes to become a party to the Shareholders' Agreement
immediately upon acquiring certain Securities in the Company and wishes to
amend the Shareholders' Agreement with the effect that the Covenantor
becomes a party thereto and as such assumes the rights and obligations of
a Shareholder under the Shareholders' Agreement.
(C) [The Covenantor is a member of the Guarantors Group and the Guarantor has
agreed to guarantee the obligations of the Covenantor under the
Shareholders' Agreement.](1)
NOW THIS DEED WITNESSES as follows:
INTERPRETATION
1. Words and expressions defined in the Shareholders' Agreement shall, unless
the context otherwise requires, have the same meanings when used in this
Deed.
ADHERENCE
2. The Covenantor hereby covenants to and undertakes with each of the other
persons in the schedule to this Deed and with each such other person who
may from time to time expressly adhere to the Shareholders' Agreement (by
way of execution of a deed or by way of novation) to be bound by and
comply in all respects with the Shareholders' Agreement and to assume the
benefits of the Shareholders' Agreement, as if the Covenantor had executed
the Shareholders' Agreement and was named as an original party thereto.
---------------
(1) Clauses in square brackets will apply where paragraph 6(b) of Schedule 3
of the Shareholders' Agreement requires a guarantor.
SEW Coinvestment Agreement
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RETRANSFER
3. The Covenantor and the Guarantor hereby undertake to each other
Shareholder and to the Company that, if the Covenantor ceases or proposes
to cease to be a member of the Guarantor's Group the Covenantor will
forthwith transfer all its interests in any securities in the Company and
assign its rights and obligations under its Preferred Equity Certificate
Agreement to the Guarantor or to another member of the Guarantor's Group.
GUARANTEE
4. The Guarantor hereby irrevocably and unconditionally guarantees the
performance by the Covenantor of all of its obligations under this Deed,
the Shareholders' Agreement.
CONTINUING GUARANTEE
5. The guarantee given in this Deed shall be continuing and shall extend to
the performance in full of all obligations guaranteed hereunder,
regardless of any intermediate payment or discharge in whole or in part or
performance in part.
WAIVER OF DEFENCES
6. The liabilities and obligations of the Guarantor shall remain in force
notwithstanding any act, omission, neglect, event or matter whatsoever
whether or not known to the Guarantor, the Covenantor, the Company, the
Adviser or the other Shareholders (other than the full performance of all
obligations guaranteed hereunder) and the foregoing shall apply, without
limitation, in relation to:
(a) anything which would have discharged the Guarantor (wholly or in
part) whether as surety, co-obligor or otherwise or which would have
afforded the Guarantor any legal or equitable defence;
(b) any winding up, dissolution, reconstruction or reorganisation, legal
limitation, disability, incapacity or lack of corporate power or
authority or other circumstances of, or any change in the
constitution or corporate identity or loss of corporate identity by,
the Covenantor or any other person; and
(c) anything which renders the Covenantor's obligations invalid or
unenforceable under the Shareholders' Agreement and any defence or
counterclaim which the Covenantor may be able to assert against any
of the other Shareholders, the Adviser or the Company.
NO IMPAIRMENT OF GUARANTOR'S OBLIGATIONS
7. Without limiting clause 6, none of the liabilities or obligations of the
Guarantor under this Deed shall be impaired by the Company and other
Shareholders agreeing with the Covenantor any amendment, variation,
assignment, novation or departure (however substantial or material) of, to
or from the Shareholders' Agreement so that any such amendment, variation,
assignment, novation or departure (including any which may have
SEW Coinvestment Agreement
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been made before the signing of this Deed) shall, whatever its nature, be
binding upon the Guarantor in all circumstances, notwithstanding that it
may increase or otherwise affect the liability of the Guarantor.
8. Without limiting clause 6, none of the liabilities or obligations of the
Guarantor under this Deed shall be impaired by the Company, the Adviser
and other Shareholders agreeing with the Covenantor any amendment,
variation, assignment, novation or departure (however substantial or
material) of, to or from any agreement so that any such amendment,
variation, assignment, novation or departure (including any which may have
been made before the signing of this Deed) shall, whatever its nature, be
binding upon the Guarantor in all circumstances, notwithstanding that it
may increase or otherwise affect the liability of the Guarantor.
DEMANDS
9. Demands under this Deed may be made, and the liabilities and obligations
of the Guarantor under this Deed may be enforced, irrespective of whether
any demands, steps or proceedings are being or have been made or taken
against the Covenantor and/or any third party.
RIGHTS SEVERAL
10. The rights of the Company and each Shareholder under this Deed shall be in
all respects several and the failure of any one or more of them to perform
obligations under the Shareholders' Agreement shall in no way affect the
rights of the others of them under or in connection with this Deed. It
shall not be necessary for the Company or any other Shareholder to be
joined as an additional party in any proceedings by a Shareholder to
protect or enforce its rights and interests under this Deed.
11. The rights of the Company, the Adviser and each Shareholder under this
Deed shall be in all respects several and the failure of any one or more
of them to perform obligations under the any agreement shall in no way
affect the rights of the others of them under or in connection with this
Deed. It shall not be necessary for the Company, the Adviser or any other
Shareholder to be joined as an additional party in any proceedings by a
Shareholder to protect or enforce its rights and interests, under this
Deed.
INVALIDITY
12. If any provision of this Deed becomes invalid, illegal or unenforceable in
any respect under any law, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired.
CONTRACTS (RIGHTS OF THIRD PARTIES) ▇▇▇ ▇▇▇▇
13. The Adviser shall have the right to enforce this Deed pursuant to the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇. No person who is not a party
to this Deed shall have the right to enforce any of its terms pursuant to
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
SEW Coinvestment Agreement
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[AGENT FOR SERVICE OF PROCESS
14. The Guarantor shall, unless it is a Company incorporated in England and
Wales, at all times maintain an agent for service of process and any other
documents in proceedings in England or any other proceedings in connection
with this Deed of Adherence. Such agent shall be _______ ________
currently of ________ _________ and any writ, judgment or other notice of
legal process shall be sufficiently served on the Guarantor if delivered
to such agent at its address for the time being. The Guarantor irrevocably
undertakes not to revoke the authority of the above agent and if, for any
reason, the Company requests the Guarantor to do so, the Guarantor shall
promptly appoint another such agent with an address in England and so
advise the Company. If following such request, the Guarantor fails to
appoint another agent, the Company shall be entitled to appoint one on
behalf of the Guarantor at the expense of the Guarantor.]
NOTICES
15. For the purpose of the Shareholders' Agreement the Covenantor's address
for notices shall be as follows:
Address:
Fax No:
Telex No:
Addressed for the personal attention of:
SUBMISSION TO JURISDICTION
16. Each of the parties agrees that the Courts of England are to have
exclusive jurisdiction to settle any disputes which may arise in
connection with this Deed.
GOVERNING LAW
17. This Deed shall be governed by and construed in accordance with English
law without prejudice to the mandatory provisions of Luxembourg law.
SEW Coinvestment Agreement
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SCHEDULE 2
ARTICLES OF THE COMPANY
SEW Coinvestment Agreement
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SCHEDULE 3
TRANSFER OF SECURITIES
TRANSFER OF SECURITIES
RESALE OF SECURITIES
1.1 No Shareholder may transfer or agree to transfer any Securities other than
in accordance with the provisions of this Schedule 3 and clause 12. Any
transfer or purported transfer made in breach of this Schedule 3 or clause
12 shall be void ab initio and of no effect and shall be disregarded by
the Company. Each of the Shareholders undertakes to procure, so far as it
is able, that each Manager shall exercise his power to cause the Company
to refuse to register any transfer of Securities not made in accordance
with this Agreement.
1.2 Subject to compliance with clauses 12.3 and/or 12.4 and paragraph 6 below,
a Shareholder may at any time transfer any of the Securities held by it to
a company which:
(a) (where the transferor is one of the parties itself) is a
wholly-owned Subsidiary of that party; or
(b) (where the transferor is a Subsidiary) is either the party of which
the transferor is a Subsidiary or is another wholly-owned Subsidiary
of that party; or
(c) to a trust, managed investment scheme or collective investment
scheme managed or advised by a party referred to in paragraph (a) or
(b) or of which a party referred to in paragraph (a) or (b) is a
trustee or responsible entity or managed or advised by a manager or
adviser of the said Shareholder,
and the remainder of this Schedule (other than paragraph 6) will not apply
to any such transfer of Shares provided that if at any time a Shareholder
ceases to be any of (a) or (b) or (c) above, the Securities will be
transferred back to the original Shareholder.
RIGHTS OF FIRST REFUSAL ON A PROPOSED TRANSFER BY A SHAREHOLDER
2.1 Subject to paragraph 1 above and paragraph 3 below, a Shareholder
intending to transfer or to agree to transfer any or all of the Securities
it owns (the TRANSFEROR) shall not do so unless it has first made a
conditional offer (on the same terms and conditions as those it originally
proposed to transfer such Securities) to sell those Securities (the SALE
SECURITIES) to each other Shareholder in accordance with the remainder of
this Schedule 3, and such offer has not been accepted by the other
Shareholders in respect of all of the Sale Securities.
2.2 Copies of any offer made by the Transferor pursuant to paragraph 2.1 above
shall be delivered to the Company and each other Shareholder and shall
consist of a conditional written offer (the WRITTEN OFFER) to sell to each
other Shareholder the Sale Securities then subject to a bona fide cash
offer from a third party (the OFFERED SECURITIES). Those copies shall have
attached to them a statement of intention to transfer to a third party,
the third
SEW Coinvestment Agreement
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party's name and address, the number of Offered Securities involved in the
proposed transfer and the terms and conditions (including, without
limitation, the price to be paid) of the transfer (the TRANSFER DETAILS).
2.3 Subject to paragraph 2.5, each other Shareholder shall be entitled to
accept the Written Offer in respect of any or all of the Offered
Securities by giving written notice (the NOTICE) to the Transferor and to
the Company within thirty (30) Business Days after receipt of the Written
Offer. Such Notice shall specify the number of Offered Securities to be
purchased by such accepting Shareholder. The completion of any sale and
purchase of Offered Securities by the Transferor to accepting Shareholders
shall be conditional on all the Offered Securities being sold to one or
more accepting Shareholders.
2.4 The Notice must specify a date for completion of the sale and purchase,
which shall not be more than thirty (30) Business Days after the date upon
which the Notice was given.
2.5 In the event that MEIF delivers a Notice in respect of some or all of the
Offered Securities, such Offered Securities shall be sold (subject to
satisfaction of the condition in paragraph 2.3) to MEIF by the Transferor,
in priority to any other accepting Shareholder.
2.6 To the extent there are unsold Offered Securities (REMAINING OFFERED
SECURITIEs) after taking into account the Offered Securities (if any) sold
to MEIF pursuant to paragraph 2.5, the Remaining Offered Securities will
be sold (subject to satisfaction of the condition in paragraph 2.3)
pursuant to this paragraph 2.6. In the event that Non-MEIF Shareholders
deliver Notices to accept more than the number of Remaining Offered
Securities, such Remaining Offered Securities shall be sold to each such
accepting Non-MEIF Shareholder by the Transferor in accordance with the
ratio of the amount of Remaining Offered Securities accepted by such
Non-MEIF Shareholder to the total number of Remaining Offered Securities
accepted in Notices delivered by all Non-MEIF Shareholders provided that
each accepting Non-MEIF Shareholder shall be entitled to be sold a minimum
of the lesser of its Pro Rata Proportion and the proportion that the
number of Remaining Offered Securities subscribed for by the Non-MEIF
Shareholder bears to the total number of Remaining Offered Securities. For
the purposes of this paragraph 2.6, PRO RATA PROPORTION means, with
respect to each Non-MEIF Shareholder, that number of Shares which equals
the Remaining Offered Securities multiplied by a fraction the numerator of
which shall be the number of Shares owned by such Non-MEIF Shareholder and
the denominator of which shall be the aggregate number of Shares owned by
all Non-MEIF Shareholders.
2.7 The purchase price for the Offered Securities sold pursuant to paragraphs
2.5 and 2.6 shall be the price set out in the Transfer Details. The
purchase price shall be paid in cash or, if so provided in the Transfer
Details, cash and deferred cash consideration in the same proportions and
with the same terms of deferred consideration as set out in the Transfer
Details.
2.8 Completion of the sale and purchase of the Offered Securities sold to
Shareholders (PURCHASING SHAREHOLDERS) pursuant to paragraphs 2.5 and 2.6
shall take place at the offices of the Company or another location agreed
between the Transferor and each
SEW Coinvestment Agreement
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Purchasing Shareholder. The purchase price, to the extent comprised of
cash, shall be paid, and documents evidencing any deferred consideration
shall be delivered, at completion. At completion, the Transferor shall
deliver to each Purchasing Shareholder the certificates and, if
applicable, duly executed stock transfer forms in the name of the
Purchasing Shareholder relating to the Offered Securities being purchased
by that Purchasing Shareholder.
2.9 If the Offered Securities are not sold to Shareholders pursuant to
paragraphs 2.5 and 2.6, the Transferor may transfer the Offered Securities
to the prospective transferee (the TRANSFEREE) named in the Transfer
Details attached to the Written Offer in respect of those Offered Shares
in accordance with the terms set out in those Transfer Details within
thirty (30) Business Days after expiry of the Written Offer provided that:
(a) the transfer shall be made only in strict accordance with the terms
set out in the Transfer Details; and
(b) clause 12.3 and paragraphs 4 and 6 of this Schedule are complied
with.
DRAG-ALONG RIGHTS
3.1 If at any time MEIF wishes to transfer (other than as part of an
intra-Group reorganisation or to a partner of Macquarie European
Infrastructure Fund LP or upon a listing of MEIF) all (but not some only)
of its Securities to any person for cash (the PROPOSED TRANSFEREE), all
Non-MEIF Shareholders promise to sell to the Proposed Transferee all (but
not some only) of the Securities (and all other interests in the Company
including rights and obligations under the Non-MEIF Shareholders'
Preferred Equity Certificates, as the case may be) held by the Non-MEIF
Shareholders (including any Securities issued after the date on which MEIF
serves the Drag-Along Request (as defined in paragraph 3.2)) at the price
per Share and/or Preferred Equity Certificate) and on the same terms and
conditions offered by the Proposed Transferee to MEIF. All the Non-MEIF
Shareholders undertake to perform such promise subject only to MEIF
exercising its right (the DRAG-ALONG RIGHTS) to require them to do so.
Each Non-MEIF Shareholder agrees to take all steps necessary to comply
with the provisions of this paragraph 3.1 and to facilitate the exercise
of a Drag-Along Right, including selling their Securities to a Proposed
Transferee if required to do so pursuant to this paragraph 3.1.
3.2 To exercise a Drag-Along Right, MEIF shall give to each Non-MEIF
Shareholder a written request (DRAG-ALONG REQUEST) containing:
(a) the name and address of the Proposed Transferee;
(b) the offered price per Share (and offered price for each Non-MEIF
Shareholder's rights and obligations under its Preferred Equity
Certificate Agreement, as the case may be), and
(c) the terms of payment and other material terms and conditions of the
Proposed Transferee's offer (including the terms and conditions
relating to the concurrent
SEW Coinvestment Agreement
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sale by MEIF of its rights and obligations under its Preferred
Equity Certificate Agreement to the Transferee, pursuant to clause
12.3).
3.3 On the date of sale by MEIF to the Proposed Transferee or, if later,
within thirty (30) Business Days of service of a Drag-Along Request, each
Non-MEIF Shareholder shall then be obliged to sell its Shares on the terms
and conditions contained in the Drag-Along Request (including as to
completion of the transaction or assignment of rights and obligations
under its Preferred Equity Certificate Agreement) and otherwise in
accordance with this Agreement.
TAG-ALONG RIGHTS
4.1 Subject to clause 4.3 if at any time MEIF wishes to transfer (other than
as part of an intra-group re-organisation or a transfer to a partner of
Macquarie European Infrastructure Fund LP) any of its Securities to a
Proposed Transferee, MEIF will not be permitted to transfer said
Securities unless the Proposed Transferee shall:
(a) have offered to purchase from the Coinvestors all the Securities
held by the Coinvestors on the same terms and conditions as the
offer to purchase the Securities of MEIF; and
(b) in respect of any Coinvestor who wishes to take up the offer
referred to in paragraph (a) above, acquire from such Coinvestor the
Securities they hold, or such proportion as they wish to sell
pro-rata, at the relevant price simultaneously with the acquisition
from MEIF of the Securities to be sold.
4.2 Subject to clause 4.3, if at any time the whole or a significant majority
of the shares in a subsidiary are proposed to be transferred (other than
as part of any group re-structuring or re-organisation which results in
the Company owning before such event, the same economic rights in such
subsidiary after such event, as it did before), the parties shall, to the
extent they are able, procure that such transfer shall not be permitted
unless the proposed transferee shall:
(a) have offered to purchase from the Coinvestors all the Securities
held by the Coinvestors on equivalent economic terms and conditions
(as nearly as can be and having regard to any other interests of the
Company other than the subsidiary being sold) as the offer to
purchase the shares in the subsidiary; and
(b) in respect of any Coinvestor who wishes to take up the offer
referred to in paragraph (a) above, acquire from such Coinvestor the
Securities they hold, or such proportion as they wish to sell
pro-rata, at the relevant price simultaneously with the acquisition
of the shares of the subsidiary to be sold.
4.3 For the avoidance of doubt, the provisions of paragraphs 4.1 and 4.2 of
this Schedule 3 shall not apply to any sale by Macquarie Leasing (UK)
Limited (or any other member of the same Group as MBL) of all or any of
its 24.9% interest in the Parent at the date of this Agreement ("the
RETAINED SHARES").
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4.4 The Company shall use all reasonable endeavours to procure that in the
event that Macquarie Leasing (UK) Limited proposes to transfer any of the
Retained Shares to anyone other than the Company or any member of the same
Group as MBL:
(a) any such transfer is done on economic terms which are no more
favourable to those upon which the Company acquired the Parent
Securities (taking into account and adjusting for any material event
which may have occurred between the date of this Agreement and the
date of any such sale); and
(b) any such transferee shall be required to enter into an agreement,
substantially in the form of the Deed of Adherence, agreeing to be
bound by the terms of this Agreement as if the Retained Shares were
Shares and the transferee was a party to this Agreement and named
herein as a Coinvestor.
SPECIFIC PERFORMANCE
5. The Company and the Shareholders hereby acknowledge that it is not
possible to measure in money the damages which will accrue to the parties
by reason of the failure of any Shareholder or the Company to observe any
of the obligations in this Schedule 3. Therefore, the Company and the
Shareholders shall have the right to specific performance of those
obligations or other equitable remedies, and if any party shall institute
any action or proceedings to enforce the provisions of this Agreement,
both the Company and the Shareholders, as applicable, hereby waive any
claim or defence that the party instituting the action or proceedings has
an adequate remedy in damages.
ADHERENCE TO THIS AGREEMENT BY TRANSFEREES
6. Any Shareholder wishing to effect a transfer of its Securities in
accordance with the terms of this Agreement shall:
(a) procure that the transferee executes a Deed of Adherence; and
(b) except in the case of transfers by MEIF or as agreed to by the
Company, if the transfer is to a member of the transferring
Shareholder's Group, guarantee to the Company by deed the due
performance of the transferee's obligations under this Agreement in
terms agreed by the Board;
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SCHEDULE 4
THE COINVESTORS
NAME ADDRESS
---- -------
[REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST] [REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
[REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST] [REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST]
CONFIDENTIAL TREATMENT REQUESTED BY MACQUARIE INFRASTRUCTURE COMPANY TRUST
AND MACQUARIE INFRASTRUCTURE COMPANY LLC
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ATTESTATIONS
Executed and delivered as a deed by
[REDACTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST] )
acting by: )
Executed and delivered as a deed by )
[REDACTED PURSUANT TO CONFIDENTIAL
TREATMENT REQUEST] )
acting by: )
Executed and delivered as a deed by )
MEIF LUXEMBOURG HOLDINGS SA )
Executed and delivered as a deed by )
MACQUARIE INVESTMENT MANAGEMENT (UK) LIMITED )
acting by two directors/ )
Executed and delivered as a deed by )
MACQUARIE LUXEMBOURG WATER S.A.R.L. )
acting by: )
CONFIDENTIAL TREATMENT REQUESTED BY MACQUARIE INFRASTRUCTURE COMPANY TRUST
AND MACQUARIE INFRASTRUCTURE COMPANY LLC
SEW Coinvestment Agreement
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ATTESTATIONS
Executed and delivered as a deed by )
[REDACTED PURSUANT TO CONFIDENTIAL
TREATMENT REQUEST] )
acting by: )
Executed and delivered as a deed by )
[REDACTED PURSUANT TO CONFIDENTIAL
TREATMENT REQUEST] )
acting by: )
Executed and delivered as a deed by )
MEIF LUXEMBOURG HOLDINGS SA )
Executed and delivered as a deed by )
MACQUARIE INVESTMENT MANAGEMENT (UK) LIMITED )
acting by two directors/ )
one director and the company secretary )
Executed and delivered as a deed by )
MACQUARIE LUXEMBOURG WATER S.AR.L. )
acting by: )
CONFIDENTIAL TREATMENT REQUESTED BY MACQUARIE INFRASTRUCTURE COMPANY TRUST AND
MACQUARIE INFRASTRUCTURE COMPANY LLC
SEW Coinvestment Agreement
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ATTESTATIONS
Executed and delivered as a deed by )
[REDACTED PURSUANT TO CONFIDENTIAL
TREATMENT REQUEST] )
acting by: )
Executed and delivered as a deed by )
[REDACTED PURSUANT TO CONFIDENTIAL
TREATMENT REQUEST] )
acting by: )
Executed and delivered as a deed by )
MEIF LUXEMBOURG HOLDINGS SA )
Executed and delivered as a deed by )
MACQUARIE INVESTMENT MANAGEMENT (UK) LIMITED )
acting by two directors / )
one director and the company secretary )
Executed and delivered as a deed by )
MACQUARIE LUXEMBOURG WATER S.A.R.L. )
acting by: )
CONFIDENTIAL TREATMENT REQUESTED BY MACQUARIE INFRASTRUCTURE COMPANY TRUST AND
MACQUARIE INFRASTRUCTURE COMPANY LLC
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