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EQT Infrastructure Co LLC
|
8-K
Jan 30, 4:00 PM ET
EQT Infrastructure Co LLC 8-K
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Contents
131
ARTICLE IFORMATION
ARTICLE IINAME AND CERTAIN DEFINITIONS
Section 2.1 Name. The name of the Company is “EQT Infrastructure Company LLC.” The Board of Directors of the Company (the “Board of Directors”) may change the name of the Company or determine that the Company may use any other designation or name for the Company.
Section 2.2 Certain Definitions. As used in this Agreement, the terms set forth below shall have the following respective meanings:
ARTICLE IIIPOWERS AND PURPOSE
Section 3.1 Purpose. The purpose of the Company is to engage, directly or indirectly, in any lawful business or activity that may be engaged in by a limited liability company formed under the Act, as such businesses or activities may be determined by the Board of Directors from time to time. The Company intends to operate its business in a manner permitting it to maintain its exclusion from registration under the Investment Company Act and, notwithstanding anything in this Agreement, the Board of Directors is authorized to cause the Company to take any action in connection with maintaining such exclusion without the consent of any other Person.
Section 3.2 No State Law Partnership. The Company is a Delaware limited liability company that will be treated as a partnership only for U.S. federal income tax purposes, and, if applicable, state tax purposes, and no Member shall be deemed to be a partner or joint venturer of any other Member, for any purposes other than U.S. federal income tax purposes and, if applicable, state tax purposes, and this Agreement shall not be construed to suggest otherwise. The Members intend that the Company shall be treated as a partnership for U.S. federal and, if applicable, state income tax purposes, and each Member and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment; provided, however, the Manager may, in its sole discretion and without the consent of any other Person, cause the Company to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes and, if applicable, state income tax purposes.
Section 3.3 Authority.
ARTICLE IVRESIDENT AGENT AND PRINCIPAL OFFICE
ARTICLE VBOARD OF DIRECTORS
Section 5.1 Powers.
Section 5.2 Number and Classification; Director Agreement.
Section 5.3 Committees.
Section 5.4 Resignation or Removal.
Section 5.5 Meetings; Chair, Vice Chair and Secretary. The Board of Directors may hold meetings, both regular and special, within or outside the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by any Chair of the Board of Directors or, in the absence of a Chair of the Board of Directors, by any Director on at least 24 hours’ (or less in times of emergency) notice to each Director, either personally, by telephone, by mail or by electronic
transmission at such time and at such place as shall from time to time be determined by the Board of Directors. Notice of any such meeting need not be given to any Director, however, if waived by such Director in writing or by electronic transmission, or if such Director shall be present at such meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting. Directors may participate in a meeting (including in a remote meeting) of the Board of Directors or any committee thereof in person or by proxy granted to another Director. Any such proxy may be granted in writing, by means of electronic transmission or as otherwise permitted by law. The Board of Directors may appoint a “Chair,” “Vice Chair” and “Secretary” of the Board of Directors, who shall have the powers and perform such duties as provided in this Agreement and as the Board of Directors may from time to time prescribe. At each meeting of the Board of Directors, any Chair of the Board of Directors or, in the absence of a Chair of the Board of Directors, a Director chosen by a majority of the Directors present in person or represented by proxy, shall act as chair of the meeting. In case the Secretary of the Board of Directors shall be absent from any meeting of the Board of Directors, a Director or officer chosen by a majority of the Directors present in person or represented by proxy shall act as secretary of the meeting.
Section 5.6 Remote Meeting. Members of the Board of Directors, or members of any committee designated by the Board of Directors, may participate in meetings of the Board of Directors, or any committee thereof, by means of telephone conference or similar communications equipment that allows all Persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 5.7 Compensation. The Board of Directors shall have the authority to fix the compensation of Directors or to establish policies for the compensation of Directors and for the reimbursement of expenses of Directors, in each case, in connection with services provided by Directors to the Company. The Directors may be paid their expenses, if any, of attendance at meetings of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as Director. Payment of any compensation of Directors may be in cash and/or in Shares, in the sole discretion of the Board of Directors. No such payment shall preclude any Director from serving the Company in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings, or their service as committee members may be compensated as part of their stated salary as a Director.
Section 5.8 Quorum; Adjournment. Subject to Section 5.10, at all meetings of the Board of Directors, a majority of the then total number of Directors serving present in person or represented by proxy shall constitute a quorum for the transaction of business and, except as otherwise provided by law, or this Agreement, the act (including action by proxy) of a majority of the then total number of Directors serving shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, a majority of the Directors present in person or represented by proxy at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall exist.
Section 5.9 Conflicts of Interest. If a Director elects to abstain from voting on any matter in which he or she has a conflict of interest, the vote of a majority of the then total number of Directors serving who have not so abstained shall be the act of the Board of Directors.
Section 5.10 Action Without a Meeting. Any action required or permitted to be taken at any meeting by the Board of Directors or any committee thereof, as the case may be, may be taken without a meeting, without prior notice and without a vote if a consent thereto is signed or transmitted electronically, as the case may be, by the members of the Board of Directors or of such committee having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all members of the Board of Directors or of such committee entitled to vote thereon were present and voted. After any such action is taken, the writing or writings or electronic transmission or transmissions shall be filed with the minutes of proceedings of the Board of Directors or such committee.
ARTICLE VIOFFICERS
Section 6.1 Officers.
Section 6.2 Delegation of Duties. Unless the Board of Directors determines otherwise, if a title is one commonly used for officers of a corporation incorporated under the DGCL, the assignment of such title shall constitute the delegation to such Person of the authorities and duties that are normally associated with that office. The Board of Directors may delegate to any officer any and all of the Board of Director’s powers and authority to the extent permitted by applicable law, including the power and authority to conduct the business and affairs of the Company and bind the Company. Without limiting the generality of the foregoing, unless otherwise determined by the Board of Directors, each officer of the Company, acting alone, is authorized to take any and all actions, execute any and all documents and do any and all other
things, including binding the Company, as such officer determines to be necessary, appropriate or advisable to conduct the business and affairs of the Company; provided, that each officer shall be subject to the same limitations and restrictions on the authority of the Board of Directors as set forth in this Agreement. Any delegation pursuant to this Section 6.2 may be revoked at any time by the Board of Directors.
Section 6.3 Officers as Agents. The officers, to the extent of their powers set forth under applicable law or this Agreement or otherwise vested in them by action of the Board of Directors not inconsistent with applicable law or this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken in accordance with such powers shall bind the Company.
ARTICLE VIISHARES; CAPITAL CONTRIBUTIONS
Section 7.1 Shares.
Section 7.2 Establishment of New Classes; Authorized Shares.
Section 7.3 Capital Contribution by the Class Q Member; Powers of Class Q Members.
Section 7.4 Additional Capital Contributions. Subject to applicable law and except as otherwise provided in this Agreement or any Class Designation or as agreed by the Company and such Member, no Member shall be required to make any Capital Contribution in addition to the purchase price paid for such Member’s Shares.
Section 7.5 Offering of Shares. Except as otherwise provided in this Agreement, the Board of Directors shall have sole discretion in determining the terms and conditions of the offer and sale of Shares and is hereby authorized and directed to do all things which the Board of Directors deems to be necessary, convenient, appropriate and advisable in connection therewith, including and the execution or performance of agreements with selling agents and others concerning the marketing of the Shares, all on such basis and upon such terms as the Board of Directors shall determine.
Section 7.6 Admission of Members.
Section 7.7 Repurchase of Shares.
ARTICLE VIIICAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
Section 8.1 Company Capital. No Member shall be paid interest on any Capital Contribution to the Company or on such Member’s Capital Account, and no Member shall have any right (i) to demand the return of such Member’s Capital Contribution or any other distribution from the Company (whether upon resignation or otherwise), except following dissolution of the Company pursuant to Section 18.2 hereof or pursuant to the Share Repurchase Plan or the Repurchase Arrangement, as applicable, (ii) to cause a partition of the Company’s assets, or (iii) to own or use any particular or individual assets of the Company.
Section 8.2 Establishment and Determination of Capital Accounts. A capital account (“Capital Account”) shall be established for each Member. The Capital Account of each Member shall consist of his, her or its Capital Contribution and shall be (i) increased by (a) the amount of any Company liabilities that are assumed by such Member, and (b) such Member’s share of Profits allocated to such Member pursuant to Section 9.2, (ii) decreased by (a) such Member’s share of Losses allocated to such Member pursuant to Section 9.2 and (b) any distributions to such Member (net of liabilities assumed by such Member and liabilities to which such property is subject) and (iii) adjusted as otherwise required by the Code and the regulations thereunder, including the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Any references in this Agreement to the Capital Account of a Member shall be deemed to refer to such Capital Account as the same may be increased or decreased from time to time as set forth above. In furtherance of the foregoing and in accordance with Treasury Regulations Section 1.1061-3(c)(3)(ii)(B), the Company shall, (i) calculate separate allocations attributable to (A) the Performance Allocation and any other distribution entitlements that are not commensurate with capital contributed to the Company, and (B) any distribution entitlements of the Members that are commensurate with capital contributed to the Company (in each case, within the meaning of Treasury Regulations Section 1.1061-3(c)(3)(ii)(B) and as reasonably determined by the Company), and (ii) consistently reflect each such allocation in its books and records.
Section 8.3 Computation of Amounts. For purposes of computing the amount of any item of income, gain, loss, deduction or expense to be reflected in Capital Accounts, the determination, recognition and classification of each such item shall be the same as its determination, recognition and classification for U.S. federal income tax purposes; provided that:
Section 8.4 Negative Capital Accounts. No Member shall be required to pay to the Company or any other Member any deficit or negative balance which may exist from time to time in such Member’s Capital Account.
Section 8.5 Adjustments to Book Value. The Company shall adjust the Book Value of its assets to fair market value in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f) as of the following times: (a) at the Board of Directors’ sole discretion, in connection with the issuance of Shares and the computation of NAV; (b) at the Board of Directors’ sole discretion, in connection with the distribution by the Company to a Member of more than a de minimis amount of Company assets, including cash, if as a result of such distribution, such Member’s interest in the Company is reduced (including a redemption); and (c) the liquidation of the Company within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g). Any such increase or decrease in Book Value of an asset made pursuant to Section 8.5(a) or (b) shall, as a matter of administrative convenience, occur on a quarterly basis to take into consideration the contributions by and distributions to Members over the course of a given quarter. Furthermore, any such increase or decrease in Book Value of an asset shall be allocated as a Profit or Loss to the Capital Accounts of the Members under Section 9.2 (determined immediately prior to the issuance of the new Shares or the distribution of assets in an ownership reduction transaction).
Section 8.6 Compliance With Section 1.704-1(b). The provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Section 1.704-1(b) of the Treasury Regulations, and shall be interpreted and applied in a manner consistent with such Treasury Regulations. If the Board of Directors determines that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Company or any Member), are computed in order to comply with such regulations, the Board of Directors may make such modification, provided that it is not likely to have a material effect on the amount distributable to any Member pursuant to Section 9.1 on the dissolution of the Company. The Board of Directors also shall (a) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount of Company capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Treasury Regulation Section 1.704-1(b)(iv)(g), and (b) make any appropriate
modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Treasury Regulation Section 1.704-1(b).
Section 8.7 Transfer of Capital Accounts. The original Capital Account established for each substituted Member shall be in the same amount as the Capital Account of the Member (or portion thereof) to which such substituted Member succeeds, at the time such substituted Member is admitted to the Company. The Capital Account of any Member whose interest in the Company shall be increased or decreased by means of the transfer of Shares. Any reference in this Agreement to a Capital Contribution of or distribution to a Member that has succeeded any other Member shall include any Capital Contributions or distributions previously made by or to the former Member on account of its Shares.
ARTICLE IXDISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES
Section 9.1 Generally.
Section 9.2 Allocation of Profit and Loss.
Section 9.3 Special Allocations. Notwithstanding the provisions of Section 9.2:
Section 9.4 Amounts Withheld. All amounts withheld pursuant to Section 9.10 from any distribution to a Member shall be treated as amounts distributed to such Member pursuant to Section 9.1 for all purposes under this Agreement.
Section 9.5 Tax Allocations: Code Section 704(c).
Section 9.6 Allocation of Income and Loss. All items of income, gain, loss, deduction, and credit allocable to any interest in the Company shall be allocated on a monthly basis based upon the results of Company operations during such month, without regard to whether cash distributions were made to the Member during such calendar month; however, such allocation shall be made in accordance with a method permissible under Code Section 704(c) and the regulations thereunder.
Section 9.7 Preparation of Tax Returns. The Board of Directors shall arrange for the preparation and timely filing of all returns with respect to Company income, gains, deductions, losses and other items required of the Company for U.S. federal and state income tax purposes and shall use all reasonable effort to furnish the tax information reasonably required by Members for U.S. federal and state income tax reporting purposes pursuant to Article XII.
Section 9.8 Tax Elections. Except as otherwise provided herein, the Manager shall, in its sole discretion, determine whether to make any available election pursuant to the Code. The Manager shall have the right to seek to revoke any such election, including any election related to the matters described in Section 3.2 upon the Manager’s determination in its sole discretion.
Section 9.9 Tax Matters.
Section 9.10 Withholding. Each Member hereby indemnifies the Company for and authorizes the Company to withhold from or pay on behalf of or with respect to such Member any amount of U.S. federal, state, local or non-U.S. taxes that the Board of Directors determines, in its sole discretion, that the Company is required to withhold or pay with respect to any amount distributable to such Member pursuant to this Agreement, including any taxes required to be withheld or paid by the Company, including pursuant to Sections 1441, 1442, 1445, 1446, 1471, 1472 or 6226 of the Code. This Section 9.10 shall survive the dissolution, winding-up and termination of the Company, and each Member’s obligations pursuant to this Section 9.10 shall survive such Member’s ceasing to be a Member of the Company.
ARTICLE XRESTRICTION ON TRANSFER AND OWNERSHIP OF UNITS
Section 10.1 Resignation of a Member. Other than as provided in Section 10.8 with respect to EQT Members, a Member may resign from the Company only by having all of such Member’s Shares repurchased pursuant to Section 10.9 or pursuant to the Share Repurchase Plan, Company Tender Offers or the Repurchase Arrangement, as applicable, or by Assigning all of such Member’s Shares in accordance with this Article X. The resignation of a Member shall not, in and of itself, dissolve or terminate the Company. In the event that a Member ceases to be a member of the Company because of death, legal incompetence, dissolution or other termination, the estate, legal representative or successor of such Member shall be deemed to be the Assignee of the Shares of such Member and may become a Substitute Member only upon compliance with the provisions of Section 10.3. Notwithstanding any provision in this Agreement to the contrary, no Class Q Share may be redeemed, repurchased, Assigned, or otherwise transferred without the prior written consent of the EQT Member that is the holder thereof; and any purported redemption, repurchase, Assignment or other transfer without such consent shall be null and void to the fullest extent permitted by law.
Section 10.2 Assignment.
Section 10.3 Substitution.
Section 10.4 Status of an Assigning Member. Any Member that shall Assign all of its, his or her Shares shall be deemed to have resigned from the Company as a Member, cease to be a Member and shall no longer have any of the rights or privileges of a Member.
Section 10.5 Further Restrictions on Transfers. Notwithstanding any provision to the contrary contained herein, the following restrictions shall also apply to any and all proposed Assignments of Shares, and any proposed Assignment in violation of same shall be, to the fullest extent permitted by law, null and void ab initio, unless otherwise waived by the Board of Directors.
Section 10.6 Elimination or Modification of Restrictions. Notwithstanding any of the foregoing provisions of this Article X, the Board of Directors may amend this Agreement without the consent of any Person to eliminate or modify any restriction on substitution of Members or Assignment of Shares at such time as the Board of Directors determines that such restriction is no longer necessary or advisable.
Section 10.7 Records. The Board of Directors shall cause the Membership List to be updated to reflect changes in the Members admitted in accordance with this Agreement, which updates shall not constitute an amendment to this Agreement.
Section 10.8 Authorization to Redeem EQT AB Group Shares. Notwithstanding anything in this Agreement but subject to the Act and any applicable limitations set forth in the Share Repurchase Plan or the Repurchase Arrangement, the Company is hereby authorized to redeem all or any portion of the EQT AB Group Shares upon such terms and conditions as the Company and the applicable EQT Member may agree from time to time without the consent of any other Person. An EQT Member that shall have all of such EQT Member’s EQT AB Group Shares redeemed by the Company shall cease to be an EQT Member and shall no longer have any of the rights or privileges of an EQT Member.
Section 10.9 Mandatory Repurchases.
Section 10.10 Tender Offers. If any Person makes a tender offer, including a “mini-tender” offer, such Person must comply with all of the provisions set forth in Regulation 14D of the Exchange Act, including disclosure and notice requirements, that would be applicable if the tender offer was for more than 5% of the outstanding Shares; provided, however, that such documents are not required to be filed with the SEC. In addition, any such Person must provide notice to the Company at least 10 business days prior to initiating any such tender offer. Without limiting any other rights or remedies the Company may exercise, any Person who initiates a tender offer without complying with the provisions set forth above (a “Non-Compliant Tender Offer”) shall be responsible for all expenses incurred by the Company in connection with the enforcement of the provisions of this Section 10.10, including expenses incurred in connection with the review of all documents related to such tender offer, and the Company may seek injunctive relief, including a temporary or permanent restraining order, in connection with any Non-Compliant Tender Offer. This Section 10.10 shall be of no force or effect with respect to any Shares that are then listed.
ARTICLE XIMEMBERS, MEETINGS AND VOTING RIGHTS OF THE MEMBERS
Section 11.1 Special Meetings of Members. Except as otherwise required by law and subject to the rights of the holders of any Class of Shares, special meetings of the Members or any Class thereof for any purpose or purposes may be called at any time only by or at the direction of (i) the Board of Directors or (ii) Class Q Members holding a majority of the outstanding Class Q Shares. A special meeting shall be held at a time and place determined by (i) the Board of Directors in its sole discretion if the Board of Directors has called such special meeting, or (ii) by the Class Q Members holding a majority of the outstanding Class Q Shares in their sole discretion if the Class Q Members have called such special meeting, in either case on a date not less than 10 days nor more than 60 days after notice of the meeting is given. To the fullest extent permitted by law, the Persons calling the special meeting shall have full power and authority concerning the satisfaction of the requirements of this Article XI and any similar matters.
Section 11.2 Notice of Meetings. If required by law, whenever Members are required to take any action at a meeting of Members, a notice in writing or by electronic transmission of the meeting, which shall state the place, if any, date and time of the meeting, the means of remote communications, if any, by which Members and proxyholders may be deemed to be present in person and vote at such meeting, the record date for determining the Members entitled to vote at the meeting, if such date is different from the record date for determining Members entitled to notice of the meeting, shall be mailed to or transmitted electronically by the secretary or other officer of the Company to each Member of record entitled to vote thereat as of the record date for determining the Members entitled to notice of the meeting. Unless otherwise provided by law or this Agreement, any such notice shall be given not less than 10 nor more than 60 days before the date of the meeting to each Member entitled to vote at such meeting as of the record date for determining the Members entitled to notice of the meeting.
Section 11.3 Record Date.
Section 11.4 Conduct of Meeting. To the fullest extent permitted by law, the Board of Directors shall have full power and authority concerning the manner of conducting any meeting of the Members or solicitation of written consents in lieu of a meeting of Members, including the determination of Persons entitled to vote, the existence of a quorum, the satisfaction of the requirements of Section 11.1, the conduct of voting, the validity and elect of any proxies, the determination of any controversies, votes or challenges arising in connection with or during the meeting or voting and similar matters. The Board of Directors shall designate a Person to serve
as chair of any meeting, who, to the fullest extent permitted by law, shall, among other things, be entitled to exercise the powers of the Board of Directors set forth in this Section. The Board of Directors may make such other regulations consistent with applicable law and this Agreement as it may deem necessary or advisable concerning the conduct of any meeting of the Members or solicitation of Member action by written consent in lieu of a meeting, 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 ballots, proxies and written consents.
Section 11.5 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 30 days. At the adjourned meeting, the Company may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each Member entitled to vote at the meeting. If after the adjournment a new record date for determination of Members entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix as the record date for determining Members entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of Members entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each Member of record as of the record date so fixed for notice of such adjourned meeting.
Section 11.6 Quorum. The Members holding a majority of the outstanding Shares of the Class or Classes entitled to vote at a meeting (including Shares owned by the EQT Members) represented in person or by proxy shall constitute a quorum at a meeting of Members of such Class or Classes unless any such action by the Members requires approval by Members holding a greater percentage of such Shares, in which case the quorum shall be such greater percentage. At any meeting of Members duly called and held in accordance with this Agreement at which a quorum is present, the act of Members holding outstanding Shares that in the aggregate represents a majority of the outstanding Shares entitled to vote at such meeting shall be deemed to constitute the act of all Members, unless a greater or different percentage is required with respect to such action under this Agreement or applicable law, in which case the act of the Members holding outstanding Shares that in the aggregate represents at least such greater or different percentage of the voting power shall be required. The Members 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 Members to leave less than a quorum, if any action taken (other than adjournment) is approved by the required percentage of the outstanding Shares specified in this Agreement (including Shares owned by the EQT Members). In the absence of a quorum, any meeting of Members may be adjourned from time to time by the affirmative vote of Members holding at least a majority of the Shares present and entitled to vote at such meeting (including Shares owned by the EQT Members) represented either in person or by proxy, but no other business may be transacted, except as provided in Section 11.5.
Section 11.7 Proxies. The Board of Directors may adopt procedures with respect to the use of proxies at any meeting of Members.
Section 11.8 Member Action Without a Meeting. If consented to by the Board of Directors in writing (which consent shall not be required with respect to any action to be taken solely by the Class Q Members), any action that may be taken at a meeting of the Members entitled to vote may be taken without a meeting, without a vote and without prior notice, if a consent or consents in writing setting forth the action so taken are signed by Members owning not less than the minimum percentage of the outstanding Shares (including Shares owned by the EQT Members) that would be necessary to authorize or take such action at a meeting at which all the Members entitled to vote were present and voted.
Section 11.9 Limited Voting Rights of the Members. Unless required by the Act or other applicable laws, the Members (other than the EQT Members) shall have no voting rights whatsoever with respect to the Company except: (a) any amendments to this Agreement shall require the approval, if any, of the Members provided for in Section 17.2; and (b) any matters upon which a Class Designation provides voting rights to the Members holding Shares of the Class governed by such Class Designation.
ARTICLE XIIBOOKS AND RECORDS, REPORTS AND RETURNS
Section 12.1 Tax Information. The Company shall use commercially reasonable efforts, at the Company’s expense, to cause to be prepared and distributed to the Members not later than 75 days after the end of the Company’s fiscal year, copies of Schedule K-1 for such Member. Each Member shall, including any time after such Member resigns as or otherwise ceases to be a Member, file its income tax returns in a manner consistent with the tax information provided to them by the Company (including on IRS Forms 1065 and Schedule K-1).
Section 12.2 Annual Report. The Company shall cause to be prepared at least annually, at Company expense, audited financial statements of the Company, together with a report of the Company’s independent auditors thereupon, within 120 days after the end of the Company’s fiscal year.
Section 12.3 Filings. The Company shall use commercially reasonable efforts to cause the income tax returns for the Company to be prepared and timely filed with the appropriate authorities (with due regard for any extension of time for filing any such income tax returns as elected by the Company). The Company shall also use commercially reasonable efforts to cause to be prepared and timely filed, with appropriate federal and state regulatory and administrative bodies, all reports required to be filed with those entities under then current applicable laws, rules and regulations. The reports shall be prepared by the accounting or reporting basis required by the regulatory bodies. Any Member shall be provided with a copy of any of the reports upon request without expense to him or her. The Company shall file, with the administrators for the various states in which the Company is registered, as required by such states, a copy of each report referred to in this Article XII.
Section 12.4 Method of Accounting. US GAAP shall be used for both income tax purposes and financial reporting purposes; provided, however, the Board of Directors may change the method of accounting from time to time to the extent that such change is permitted
(under the Code and US GAAP) and disclosed in a report publicly filed by the Company with the SEC or is disclosed in a written notice sent to Members.
Section 12.5 No Inspection Rights. Except to the extent, if any, otherwise expressly set forth in this Agreement, no Member shall have any right under the Act or otherwise to access or inspect the Membership List or any other books and records of the Company.
ARTICLE XIIIMANAGER; ADVISOR
Section 13.1 Appointment and Initial Manager; Authorization of Payments to Manager.
Section 13.2 Supervision of Manager Compensation and the Manager.
Section 13.3 Management Agreement. The Company shall comply with all of its duties and obligations under the Management Agreement. Upon termination of the Management Agreement, the Company shall pay the Termination Fee to the Manager.
Section 13.4 Organization and Offering Expenses. The Company shall reimburse the Manager and its Affiliates for organizational and offering costs incurred by the Manager on behalf of the Company prior to the commencement of operations of the Company (including legal, accounting, printing, mailing, subscription processing and filing fees and
expenses, due diligence expenses of participating broker-dealers supported by detailed and itemized invoices, costs in connection with preparing sales materials, design and website expenses, fees and expenses of the Company).
Section 13.5 Reimbursement for Company Expenses and Expenses of Portfolio Companies. The Company shall reimburse the Manager and its Affiliates for any Company Expenses incurred on behalf of the Company.
ARTICLE XIVVALUATION
Section 14.1 Review of Policies and Procedures. The Board of Directors may review the valuation policies and procedures of the Company from time to time to determine that the policies and procedures being followed by the Company at any time are appropriate.
Section 14.2 Valuation.
ARTICLE XVCONFLICTS OF INTEREST
Section 15.1 Generally; Specific Authorization.
Section 15.2 Standards of Conduct.
Section 15.3 Modification of Duties. Except as expressly set forth in this Agreement, expressly required by the Act or required by the Investment Advisers Act of 1940, as
amended, neither the Manager nor any of the Indemnified Parties shall have any duties or liabilities, including fiduciary duties, to the Company, any Member or any other Person bound by this Agreement, and the provisions of this Agreement, to the extent that they restrict, eliminate or otherwise modify the duties and liabilities, including fiduciary duties, of the Manager or the Indemnified Parties otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of the Manager or the Indemnified Parties. Any exculpation or indemnification standards contained herein shall not restore or create, whether in contract or otherwise, any such duties or liabilities.
Section 15.4 Corporate Opportunity; Authorization to Compete. Notwithstanding any other provision of this Agreement or any duty that would otherwise exist at law or in equity, each of the Indemnified Parties may engage in or possess an interest in any other business or venture of any kind, independently or with others, on its own behalf or on behalf of other entities with which any of the Indemnified Parties is an Affiliate or otherwise, and each of the Indemnified Parties may engage in any such activities, whether or not competitive with the Company or any Affiliate of the Company, without any obligation to offer any interest in such activities to the Company, an Affiliate of the Company or to any other Member. Notwithstanding any other provision of this Agreement or any duty that would otherwise exist at law or in equity, neither the Company, any Affiliate of the Company nor any Member shall have any right, by virtue of this Agreement or the existence of the Company, in or to such activities, or the income or profits derived therefrom, and the pursuit of such activities, even if competitive with the business of the Company or an Affiliate of the Company, shall not be deemed wrongful or improper or the breach of this Agreement or of any duty otherwise existing hereunder, at law, in equity or otherwise.
Section 15.5 Other Duties. The Members acknowledge and agree that the Company may enter into joint ventures with EQT Vehicles and that the Indemnified Parties may owe duties (including fiduciary duties) to such other EQT Vehicles now or in the future and that, to the fullest extent permitted by applicable law, (i) such duties (including fiduciary duties) may take priority over the duties of such Indemnified Party to the Company, including the Members, and (ii) to the extent an Indemnified Party acts in compliance with its duties (including fiduciary duties) to any such EQT Vehicle, any action taken or omission with respect to the Company in connection with or arising from such compliance shall be deemed consistent with the terms of this Agreement, including the implied contractual covenant of good faith and fair dealing, and shall not constitute a breach of this Agreement or of any duty otherwise existing at law, in equity or otherwise.
ARTICLE XVILIABILITY LIMITATION, INDEMNIFICATIONAND TRANSACTIONS WITH THE COMPANY
Section 16.1 Limitation of Member Liability. Except as may otherwise be provided in this Agreement or in any Class Designation and except as required by law, the liability of each Member in such capacity shall be limited to the amount of such Member’s Capital Contribution and pro rata share of any undistributed Profits. Except as may otherwise be provided in this Agreement or in any Class Designation and except as required by law, after the payment of
all subscription proceeds for the Shares purchased by such Member, no Member shall have any further obligations to the Company, be subject to any additional assessment or be required to contribute any additional capital to, or to loan any funds to, the Company, unless otherwise agreed by the Company and the Member. No Member shall have any personal liability on account of any obligations and liabilities of, including any amounts payable by, the Company under or pursuant to, or otherwise in connection with, this Agreement or the conduct of the business of the Company solely by reason of being a member of the Company. To the fullest extent permitted by law, no Member shall have any duties (including fiduciary duties) or obligations to the Company or any other Member.
Section 16.2 Limitation of Liability.
Section 16.3 Indemnification.
ARTICLE XVIIAMENDMENTS
Section 17.1 Amendments Generally. Subject to Sections 7.2(a), 7.3 and 17.2 of this Agreement, this Agreement may be amended, at any time and from time to time, by the Board of Directors with the consent of Class Q Members holding a majority of the outstanding Class Q Shares.
Section 17.2 Amendments with the Consent of the Majority of the Members. Notwithstanding Section 17.1, any amendment to this Agreement that would have a disproportionate material adverse effect on the terms, rights, designations, preferences, powers or duties of any Class of Shares in relation to the terms, rights, designations, preferences, powers or duties of any other Class of Shares (other than in relation to the Class Q Shares and other than any disproportionate effect that is due to the number of Shares of such Class) must be approved by the holders of not less than a majority of the Shares of the Class so affected (it being understood and agreed that any amendment to effectuate the creation or issuance of a Class of Shares with rights or preferences senior to any existing Class of Shares shall be deemed not to have a material adverse effect on the rights or preferences of such existing Class of Shares); provided, however, that the creation and issuance of any Class of Shares that does not require the consent of the Class Q Members under Section 7.2 or Section 7.3 shall not be deemed an alteration of the terms, rights, designations, preferences, powers or duties of the Class Q Shares and any amendment to this Agreement to effectuate such creation and issuance shall not require the consent of the Class Q Shares; provided, further that, notwithstanding the foregoing provisions of this Section 17.2, the Board of Directors may, with the consent Class Q Members holding a majority of the outstanding Class Q Shares and without the consent of any other Members, amend, supplement, waive or modify any provision of this Agreement and execute, swear to, acknowledge, deliver, file and record whatever documents may be required in connection therewith, to reflect: (i) any amendment, supplement, waiver or modification that the Board of Directors determines to be necessary or appropriate in connection with the creation, authorization or issuance of any Class or
series of Shares or other equity interest in the Company; (ii) the admission, substitution, withdrawal or removal of Directors in accordance with this Agreement; (iii) a change in the name of the Company, the location of the principal place of business of the Company or the registered office of the Company; (iv) any amendment, supplement, waiver or modification that the Board of Directors determines to be necessary or appropriate to address changes in Treasury Regulations, legislation or interpretation; and (v) a change in the Fiscal Year or taxable year of the Company and any other changes that the Board of Directors determines to be necessary or appropriate as a result of a change in the Fiscal Year or taxable year of the Company including a change in the dates on which distributions are to be made by the Company.
ARTICLE XVIIIDURATION AND DISSOLUTION OF THE COMPANY
Section 18.1 Duration. The Company shall continue perpetually unless terminated in accordance with the Act and the provisions of this Article XVIII.
Section 18.2 Dissolution; Winding Up.
ARTICLE XIXMISCELLANEOUS
Section 19.1 Covenant to Sign Documents. Each Member covenants, for itself, himself or herself and its, his or her successors and assigns, to execute, with acknowledgment or verification, if required, any and all certificates, documents and other writings which the Board of Directors determines may be necessary or appropriate to form, operate and terminate the Company and to achieve its purposes, including the Certificate and all amendments thereto, and all such filings, records or publications necessary or appropriate laws of any jurisdiction in which the Company shall conduct its business.
Section 19.2 Notices. Except as otherwise expressly provided for in this Agreement, all notices to any Member by the Company shall be in writing and shall be deemed duly given when delivered personally, when deposited with a nationally recognized overnight courier service, delivery pre-paid, when deposited in the United States mail, first-class postage pre-paid, when publicly disclosed by press release or in a filing with the SEC, when delivered electronically, or when made publicly in any other manner, including by press release, to the extent permitted by the Act, and all notices which any Member may desire or may be required to give the Company, the Board of Directors or any other Members shall be in writing and shall be deemed duly given when delivered personally, when deposited with a nationally recognized overnight courier service, delivery pre-paid, or when deposited in the United States mail, first-class postage pre-paid.
Section 19.3 Entire Agreement. This Agreement (including any Class Designation) and the Subscription Agreements constitute the entire agreement among the parties
hereto and supersede any and all prior agreements and representations, either oral or in writing, among the parties hereto with respect to the subject matter contained herein.
Section 19.4 Submission to Jurisdiction.
Section 19.5 Waiver. No waiver by any party hereto of any breach of, or default under, this Agreement by any other party shall be construed or deemed a waiver of any other breach of or default under this Agreement, and shall not preclude any party from exercising or asserting any rights under this Agreement with respect to any other.
Section 19.6 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Section 19.7 Application of Delaware Law. This Agreement, and all claims or causes of action (whether in contract, tort, statute, common law or otherwise) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of the State of Delaware.
Section 19.8 Captions. Section titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement.
Section 19.9 Number and Gender. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders.
Section 19.10 Counterparts; Electronic Signature. This Agreement may be executed in counterparts, any or all of which may be signed by the Manager and the Company, and each of their authorized officers and attorneys-in-fact, on behalf of the Members as their attorney-in-fact. Counterpart signature pages to each Member’s Subscription Agreement shall also constitute a counterpart to this Agreement upon acceptance thereof by the Company. For the avoidance of doubt a Person’s execution and delivery of this Agreement by electronic signature and electronic transmission (jointly, an “Electronic Signature”), including via DocuSign or other similar method, shall constitute the execution and delivery of a counterpart of this Agreement by or on behalf of such Person and shall bind such Person to the terms of this Agreement. The parties hereto agree that this Agreement and any additional information incidental hereto may be maintained as electronic records. Any Person executing and delivering this Agreement by Electronic Signature further agrees to take any and all reasonable additional actions, if any, evidencing its intent to be bound by the terms of this Agreement, as may be reasonably requested by the Company.
Section 19.11 Waiver of Action for Partition and Dissolution. Each of the parties hereto irrevocably waives during the term of the Company any right that it may have to maintain any action for partition with respect to any property of the Company and to seek or cause the Company to be dissolved or liquidated, whether judicially, equitably or otherwise.
Section 19.12 Waiver of Appraisal Rights. Each Member hereby agrees that it shall not have any appraisal or dissenters’ rights pursuant to Section 18-210 of the Act or otherwise.
Section 19.13 Assignability. Each and all of the covenants, terms, provisions and arguments herein contained shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto, subject to the requirements of Article X.
Section 19.14 Anti-Money Laundering. Notwithstanding any other provision of this Agreement to the contrary, the Company and the Manager, in its own name and on behalf of the Company, shall be authorized, without the consent of any Person, including any Member, to take such action as it determines to be necessary or advisable to comply, or to cause the Company to comply, with any anti-money laundering or anti-terrorist laws, rules, regulations, directives or special measures.
Section 19.15 No Third Party Beneficiaries. Except for the Indemnified Parties, there are no intended or unintended third party beneficiaries of this Agreement (it being understood that each Indemnified Party is an express third party beneficiary with respect to the provisions of this Agreement applicable to them as if they were parties to this Agreement).
Section 19.16 Construction. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. Except where the context clearly requires to the contrary: (i) each reference in this Agreement to a designated “Section,” “Schedule,” “Exhibit,” or “Appendix” is to the corresponding Section, Schedule, Exhibit, or Appendix of or to this Agreement; (ii) instances of gender or entity-specific usage (e.g., “his,” “her,” “its,” “person” or “individual”) shall not be interpreted to preclude the application of any provision of this Agreement to any individual or entity; (iii) the word “or” shall not be applied in its exclusive sense; (iv) context-appropriate grammatical variations of defined terms shall be applied in such manner as to give effect to the underlying meaning of such defined terms; (v) “including” shall mean “including, without limitation” and “approved” shall mean “approved or ratified” (with corresponding meaning applied to “consent” and other similar terms); (vi) references to laws, regulations, treaties and other rules, as well as to contracts, agreements, governmental forms, reports and other instruments, shall mean such rules and instruments as in effect at the time of determination (taking into account any amendments thereto effective at such time without regard to whether such amendments were enacted or adopted after the effective date of this Agreement) and shall include all successor rules and instruments thereto; (vii) references to any specific statute or similar codification of law shall mean such statute or other codification as construed, modified, extended or enabled by any applicable binding governmental rules or regulations; (viii) references to “law” shall mean any applicable law, whether embodied in statute, governmental rule or regulation, case law, treaty or other legally binding format; (ix) references to “$” or “dollars” shall mean the lawful currency of the United States; (x) references to “days” shall mean full calendar days; references to “business days” shall mean all days other than Saturdays,
Sundays and days that are legal holidays in the State of New York; (xi) references to months or years shall be to the actual calendar months or years at issue (taking into account the actual number of days in any such month or year); (xii) days, business days and times of day shall be determined by reference to local time in New York, New York; (xiii) references to an “entity” shall include a partnership or similar vehicle notwithstanding that, for certain purposes under applicable law, such partnership or vehicle may be treated as an aggregate of its owners; (xiv) the term “notwithstanding any provision of this Agreement to the contrary” or any similar term shall not be deemed to limit the power and authority to amend this Agreement in accordance with the provisions of Article XVII; (xv) the words “hereof,” “herein,” and “hereunder,” and words of similar import, when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (xvi) the phrase “any provision of this Agreement” and derivative or similar phrases shall mean or refer only to any express provision actually written in this Agreement and not to any provision of the Act that may have application to the Company; (xvii) when interpreting the substantive law of any specific jurisdiction, the laws of such jurisdiction applicable to such interpretation shall be applied without regard to conflict of laws principles; and (xviii) the English language version of this Agreement shall govern all questions of interpretation relating to this Agreement notwithstanding that this Agreement may have been translated into, and executed in, other languages.