IC 5-10.2-9-1 "Active business operations"
Sec. 1. As used in this chapter, "active business operations" means
all business operations that are not inactive business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-2 "Board"
Sec. 2. As used in this chapter, "board" refers to the following:
(1) The board of trustees of the Indiana state teachers'
retirement fund.
(2) The board of trustees of the public employees' retirement
fund. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-3 "Business operations"
Sec. 3. As used in this chapter, "business operations" means
engaging in any commerce in any form in Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-4 "Company"
Sec. 4. (a) As used in this chapter, "company" means any of the
following:
(1) A sole proprietorship.
(2) An organization.
(3) An association.
(4) A corporation.
(5) A partnership.
(6) A joint venture.
(7) A limited partnership.
(8) A limited liability partnership.
(9) A limited liability company.
(10) A business association.
(b) The term includes all wholly owned subsidiaries, majority
owned subsidiaries, parent companies, and affiliates of such entities
or business associations that exist for profit making purposes. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-5 "Complicit in Darfur genocide"
Sec. 5. For purposes of this chapter, a company is "complicit in
the Darfur genocide" if the company took any actions during the
preceding twenty (20) month period that directly support or promote
the genocidal campaign in the Darfur region of Sudan, including any
of the following:
(1) Preventing Darfur's victimized population from
communicating with each other.
(2) Encouraging Sudanese citizens to speak out against an
internationally approved security force in Darfur.
(3) Actively working to deny, cover up, or alter the record on
human rights abuses in Darfur. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-6 "Cost of divestment"
Sec. 6. As used in this chapter, "cost of divestment" means the
sum of the following:
(1) The costs associated with the sale, redemption, divestment,
or withdrawal of an investment.
(2) The costs associated with the acquisition and maintenance
of a replacement investment.
(3) A cost not described in subdivision (1) or (2) that is incurred
by the fund in connection with a divestment transaction. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-7 "Direct holdings"
Sec. 7. As used in this chapter, "direct holdings" means all
securities of a company held directly by the fund or in an account in
which the fund owns all shares or interests. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-8 "Fund"
Sec. 8. As used in this chapter, "fund" refers to the following:
(1) The Indiana state teachers' retirement fund.
(2) The public employees' retirement fund. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-9 "Government of Sudan"
Sec. 9. (a) As used in this chapter, "government of Sudan" refers
to the government in Khartoum, Sudan, that is led by the National
Congress Party (formally known as the National Islamic Front) or
any successor government formed on or after October 13, 2006,
including the coalition National Unity Government agreed upon in
the Comprehensive Peace Agreement for Sudan.
(b) The term does not include the regional government of southern
Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-10 "Inactive business operations"
Sec. 10. As used in this chapter, "inactive business operations"
means the mere continued holding or renewal of rights to property
previously operated to generate revenues but not presently deployed
for such purpose. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-11 "Indirect holdings"
Sec. 11. As used in this chapter, "indirect holdings" means all
securities of a company:
(1) held in an account or a fund; and
(2) managed by one (1) or more persons not employed by the
fund, in which the fund owns shares or interests together with
other investors not subject to this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-12 "Marginalized populations of Sudan"
Sec. 12. As used in this chapter, "marginalized populations of
Sudan" includes the following:
(1) The part of the population in the Darfur region that has been
genocidally victimized.
(2) The part of the population of southern Sudan victimized by
Sudan's north-south civil war.
(3) The Beja, Rashidiya, and other similarly underserved groups
of eastern Sudan.
(4) The Nubian and other similarly underserved groups in
Sudan's Abyei, southern Blue Nile, and Nuba mountain regions.
(5) The Amri, Hamadab, Manasir, and other similarly
underserved groups of northern Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-13 "Military equipment"
Sec. 13. (a) As used in this chapter, "military equipment" means
weapons, arms, or military defense supplies provided directly or
indirectly to any force actively participating in the conflict in Sudan.
The term includes any equipment that readily may be used for
military purposes, including:
(1) radar systems; or
(2) military grade transport vehicles.
(b) The term does not include weapons, arms, or military defense
supplies sold to peacekeeping forces that may be dispatched to Sudan
by the United Nations or the African Union. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-14 "Mineral extraction activities"
Sec. 14. (a) As used in this chapter, "mineral extraction activities"
means the exploration, extraction, processing, transporting, or
wholesale sale of elemental minerals or associated metals or oxides,
including:
(1) gold;
(2) copper;
(3) chromium;
(4) chromite;
(5) diamonds;
(6) iron;
(7) iron ore;
(8) silver;
(9) tungsten;
(10) uranium; and
(11) zinc.
(b) The term includes the facilitation of mineral extraction
activities, including the provision of supplies or services in support
of mineral extraction activities. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-15 "Oil related activities"
Sec. 15. (a) As used in this chapter, "oil related activities"
includes:
(1) the export of oil;
(2) the extraction of or production of oil;
(3) the exploration for oil;
(4) the ownership of rights to oil blocks;
(5) the refining or processing of oil;
(6) the transportation of oil;
(7) the selling or trading of oil; or
(8) the construction or maintenance of a pipeline, a refinery, or
another oil field infrastructure.
(b) The term includes the facilitation of oil related activities,
including the provision of supplies or services in support of oil
related activities. The mere retail sale of gasoline and related
consumer products is not considered an oil related activity. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-16 "Power production activities"
Sec. 16. As used in this chapter, "power production activities"
means any business operation that involves a project commissioned
by the National Electricity Corporation of Sudan or other similar
entity of the government of Sudan whose purpose is to facilitate
power generation and delivery. The term includes the following:
(1) Establishing power generating plants or hydroelectric dams.
(2) Selling or installing components for power generating plants
or hydroelectric dams.
(3) Providing service contracts related to the installation or
maintenance of power generating plants or hydroelectric dams.
(4) Facilitating power production activities, including providing
supplies or services in support of power production activities. As added by P.L.149-2007, SEC.3. IC 5-10.2-9-17 "Research firm"
Sec. 17. As used in this chapter, "research firm" means a
reputable, neutral third party research firm not controlled by the
fund. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-18 "Scrutinized company"
Sec. 18. (a) As used in this chapter, "scrutinized company" means
a company that meets any of the following criteria:
(1) Both of the following apply to the company:
(A) The company has business operations that involve
contracts with or the provision of supplies or services to:
(i) the government of Sudan;
(ii) companies in which the government of Sudan has any
direct or indirect equity share;
(iii) consortiums or projects commissioned by the
government of Sudan; or
(iv) companies involved in consortiums or projects
commissioned by the government of Sudan.
(B) Either:
(i) more than ten percent (10%) of the company's revenues
or assets linked to Sudan involve oil related activities or
mineral extraction activities, and less than seventy-five
percent (75%) of the company's oil related or mineral
extracting revenues or assets linked to Sudan involve
contracts with the regional government of southern Sudan
or a project or consortium created exclusively by the
regional government, and the company has failed to take
substantial action; or
(ii) more than ten percent (10%) of the company's
revenues or assets linked to Sudan involve power
production activities and less than seventy-five percent
(75%) of the company's power production activities
include projects that are intended to provide power or
electricity to the marginalized populations of Sudan, and
the company has failed to take substantial action.
(2) The company is complicit in the Darfur genocide.
(3) The company supplies military equipment within Sudan,
unless the company implements safeguards to prevent the use
of the equipment by forces actively participating in armed
conflict in Sudan. This subdivision does not apply to companies
involved in the sale of military equipment solely to the regional
government of southern Sudan or any internationally recognized
peacekeeping force or humanitarian organization.
(b) The term does not include a social development company that
is not complicit in the Darfur genocide. As added by P.L.149-2007, SEC.3. IC 5-10.2-9-19 "Social development company"
Sec. 19. As used in this chapter, "social development company"
means a company whose primary purpose in Sudan is to provide
humanitarian goods or services, including:
(1) medicine or medical equipment;
(2) agricultural supplies or infrastructure;
(3) educational opportunities;
(4) journalism related activities;
(5) information or informational materials;
(6) spiritual related activities;
(7) services that are clerical or reporting in nature;
(8) food;
(9) clothing; or
(10) general consumer goods that are unrelated to oil related
activities, mineral extraction activities, or power production
activities. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-20 "Substantial action"
Sec. 20. As used in this chapter, "substantial action" means:
(1) adopting, publicizing, and implementing a formal plan to
cease scrutinized business operations within one (1) year and to
refrain from any new business operations;
(2) undertaking significant humanitarian efforts on behalf of
one (1) or more marginalized populations of Sudan; or
(3) materially improving conditions for the genocidally
victimized population in Darfur through engagement with the
government of Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-21 Identification of scrutinized companies
Sec. 21. (a) Not later than March 30, 2008, each board shall make
a good faith effort to identify all scrutinized companies in which the
fund administered by the board has direct or indirect holdings.
(b) In carrying out its responsibilities under subsection (a), and at
the board's discretion, each board may use existing research or
contract with a research firm.
(c) A board or a research firm with which the board contracts
under subsection (b) may take any of the following actions:
(1) Review publicly available information regarding companies
with business operations in Sudan.
(2) Contact other institutional investors that invest in companies
with business operations in Sudan.
(3) Contact asset managers contracted by the fund that invest in
companies with business operations in Sudan.
(d) Not later than the first meeting of the board after March 30,
2008, each board shall compile the names of all scrutinized
companies into a scrutinized company list and indicate whether each
scrutinized company has active or inactive business operations in
Sudan.
(e) Each board shall update its scrutinized company list at least on
an annual basis based on evolving information from sources
described in subsections (b) and (c). As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-22 Identification of holdings
Sec. 22. After a board creates or updates the scrutinized company
list under section 21 of this chapter, the board shall immediately
identify the companies on the scrutinized company list in which the
fund administered by the board has direct or indirect holdings. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-23 Notice to scrutinized company with inactive business operations
Sec. 23. (a) Each fund shall send to each scrutinized company:
(1) that is identified under section 22 of this chapter as one in
which the fund has direct or indirect holdings; and
(2) that has only inactive business operations;
a written notice concerning the contents of this chapter and a
statement encouraging the company to continue to refrain from
initiating active business operations in Sudan until the company is
able to avoid scrutinized business operations altogether.
(b) The fund shall continue to correspond on a semiannual basis
with scrutinized companies in which the fund has direct or indirect
holdings and that have only inactive business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-24 Notice to scrutinized company with active business operations
Sec. 24. (a) Each fund shall send to each scrutinized company:
(1) that is identified under section 22 of this chapter as one in
which the fund has direct or indirect holdings; and
(2) that has active business operations;
a written notice concerning the contents of this chapter and a
statement indicating that the fund's holdings in the company may
become subject to divestment by the fund.
(b) A notice sent under this section shall:
(1) offer the company the opportunity to clarify the company's
Sudan related activities; and
(2) encourage the company, within ninety (90) days after the
date of the written notice, to either:
(A) cease its scrutinized business operations; or
(B) convert the company's operations to inactive business
operations in order to avoid divestment by the fund of the
fund's holdings in the company. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-25 Compliance by a scrutinized company
Sec. 25. (a) If, within ninety (90) days after a fund's first
engagement with a company under section 24 of this chapter, the
company ceases scrutinized business operations, the company shall
be removed from the fund's scrutinized company list and the
provisions of sections 26, 27, 28, and 29 of this chapter shall cease
to apply to the company unless the company resumes scrutinized
business operations.
(b) If, within ninety (90) days after a fund first engages with a
company under section 24 of this chapter, the company converts its
scrutinized active business operations to inactive business
operations, the company shall be subject to the provisions of section
23 of this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-26 Divestment; exemption for certain commingled funds
Sec. 26. (a) Except as provided in sections 28 and 29 of this
chapter, if, after ninety (90) days after a fund's first engagement with
a company under section 24 of this chapter, the company continues
to have scrutinized active business operations, the fund shall sell,
redeem, divest, or withdraw all publicly traded securities of the
company that are held by the fund, as follows:
(1) At least fifty percent (50%) of such assets shall be removed
from the fund's assets under management within nine (9)
months after the company's appearance on the scrutinized
company list.
(2) One hundred percent (100%) of such assets shall be
removed from the fund's assets under management within
fifteen (15) months after the company's appearance on the
scrutinized company list.
(b) If a company that ceased scrutinized active business
operations following engagement under section 24 of this chapter
resumes scrutinized active business operations, and only while the
company continues to have active business operations, the company
shall immediately be placed back on the scrutinized company list. A
fund that has holdings in the company shall sell, redeem, divest, or
withdraw all publicly traded securities of the company as provided
in subsection (a) based on the date the company is placed back on the
scrutinized company list. The fund shall send a written notice to the
company indicating that the company was placed back on the
scrutinized company list and is subject to divestment.
(c) A board is not required to divest the board's holdings in a
passively managed commingled fund that includes a scrutinized
company with active business operations in Sudan if the estimated
cost of divestment of the commingled fund is greater than ten percent
(10%) of the total value of the scrutinized companies with active
business operations held in the commingled fund. The board shall
include any commingled fund that includes a scrutinized company
that is exempted from divestment under this subsection in the board's
report submitted to the legislative council under section 31 of this
chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-27 Acquisition of securities containing scrutinized companies
Sec. 27. Except as provided in sections 28 and 29 of this chapter,
a fund shall not acquire securities of companies on the scrutinized
company list that have active business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-28 Scrutinized company excluded from federal sanctions
Sec. 28. If the government of the United States affirmatively
declares any company on the scrutinized company list with active
business operations in Sudan to be excluded from any federal
sanctions relating to Sudan, the company is not subject to divestment
or investment prohibition under this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-29 Exclusion of indirect holdings in actively managed investment
funds
Sec. 29. Notwithstanding any provision to the contrary, sections
26 and 27 of this chapter do not apply to indirect holdings in actively
managed investment funds. However, if a fund has indirect holdings
in actively managed investment funds containing the securities of
scrutinized companies with active business operations, the fund shall
submit letters to the managers of the investment funds requesting that
the managers remove the scrutinized companies with active business
operations from the fund or create a similar actively managed fund
with indirect holdings without scrutinized companies with active
business operations. If the manager creates a similar fund, the fund
shall replace all applicable investments with investments in the
similar fund in a period consistent with prudent investing standards. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-30 Exclusion of private equity funds
Sec. 30. This chapter does not apply to private equity funds. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-31 Report to legislative council
Sec. 31. (a) On or before November 1, 2007, and thereafter as
directed by the legislative council, the board shall submit a report in
an electronic format under IC 5-14-6 to the legislative council for
distribution to the members of the general assembly.
(b) The report must include at least the following information, as
of the date of the report:
(1) A copy of the scrutinized company list.
(2) A summary of correspondence with companies engaged by
the fund under sections 23 and 24 of this chapter.
(3) All investments sold, redeemed, divested, or withdrawn in
compliance with section 26 of this chapter.
(4) All commingled funds that are exempted from divestment
under section 26 of this chapter.
(5) All prohibited investments under section 27 of this chapter.
(6) Any progress made under section 29 of this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-32 Expiration of chapter
Sec. 32. This chapter expires on the earliest of the following:
(1) Twelve (12) months after the date the government of Sudan
halts the genocide in Darfur as determined by the Congress of
the United States and the United States Department of State.
(2) The date the United States revokes its current sanctions
against the government of Sudan.
(3) The date Congress or the President of the United States,
through legislation or executive order, declares that mandatory
divestment of the type provided for in this chapter interferes
with the conduct of foreign policy for the United States.
(4) The date Congress or the President of the United States
declares that the government of Sudan:
(A) has honored its commitments to cease attacks on
civilians;
(B) demobilizes and demilitarizes the Janjaweed and
associated militias;
(C) grants free and unfettered access for deliveries of
humanitarian assistance; and
(D) allows for the safe and voluntary return of refugees and
international displaced persons. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-33 Exemption from conflicting statutory or common law obligations
Sec. 33. With respect to actions taken in compliance with this
chapter, including all good faith determinations regarding companies
on the scrutinized company list, the fund shall be exempt from any
conflicting statutory or common law obligations, including any
obligations with respect to choice of asset managers, investment
funds, or investments for fund securities portfolios. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-34 Cessation of divestment and reinvestment in scrutinized companies
Sec. 34. (a) Notwithstanding any provision to the contrary, the
fund shall be permitted to cease divesting and to reinvest in certain
scrutinized companies on the scrutinized company list with active
business operations in Sudan if evidence shows that the value for all
assets under management by the fund becomes equal to or less than
ninety-nine and five-tenths percent (99.5%) of the value of all assets
under management by the fund, including the companies divested
under section 26 of this chapter.
(b) As provided by this section, any cessation of divestment or
reinvestment shall be strictly limited to the minimum steps necessary
to avoid the contingency set forth in subsection (a).
(c) For any cessation of divestment, reinvestment, and subsequent
ongoing investment authorized by this section, the fund shall submit
a report in an electronic format under IC 5-14-6 to the legislative
council for distribution to the members of the general assembly in
advance of any initial reinvestment. The report shall be updated
annually thereafter as applicable, setting forth the reasons and
justifications for the decision to cease divestment, reinvest, or remain
invested with companies with scrutinized active business operations.
This section does not apply to companies that have ceased to have
scrutinized business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-35 Immunity; liability of the fund and its agents
Sec. 35. (a) Both:
(1) the state and its officers, agents, and employees; and
(2) the fund and its board members, executive director, officers,
agents, and employees;
are immune from civil liability for any act or omission related to the
removal of an asset from the fund under this chapter.
(b) In addition to the immunity provided under subsection (a),
both:
(1) the officers, agents, and employees of the state; and
(2) the board members, executive director, officers, agents, and
employees of the fund;
are entitled to indemnification from the fund for all losses, costs, and
expenses, including reasonable attorney's fees, associated with
defending against any claim or suit relating to an act authorized
under this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-36 Severability
Sec. 36. The provisions of this chapter are severable in the manner
provided in IC 1-1-1-8(b). As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-1 "Active business operations"
Sec. 1. As used in this chapter, "active business operations" means
all business operations that are not inactive business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-2 "Board"
Sec. 2. As used in this chapter, "board" refers to the following:
(1) The board of trustees of the Indiana state teachers'
retirement fund.
(2) The board of trustees of the public employees' retirement
fund. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-3 "Business operations"
Sec. 3. As used in this chapter, "business operations" means
engaging in any commerce in any form in Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-4 "Company"
Sec. 4. (a) As used in this chapter, "company" means any of the
following:
(1) A sole proprietorship.
(2) An organization.
(3) An association.
(4) A corporation.
(5) A partnership.
(6) A joint venture.
(7) A limited partnership.
(8) A limited liability partnership.
(9) A limited liability company.
(10) A business association.
(b) The term includes all wholly owned subsidiaries, majority
owned subsidiaries, parent companies, and affiliates of such entities
or business associations that exist for profit making purposes. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-5 "Complicit in Darfur genocide"
Sec. 5. For purposes of this chapter, a company is "complicit in
the Darfur genocide" if the company took any actions during the
preceding twenty (20) month period that directly support or promote
the genocidal campaign in the Darfur region of Sudan, including any
of the following:
(1) Preventing Darfur's victimized population from
communicating with each other.
(2) Encouraging Sudanese citizens to speak out against an
internationally approved security force in Darfur.
(3) Actively working to deny, cover up, or alter the record on
human rights abuses in Darfur. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-6 "Cost of divestment"
Sec. 6. As used in this chapter, "cost of divestment" means the
sum of the following:
(1) The costs associated with the sale, redemption, divestment,
or withdrawal of an investment.
(2) The costs associated with the acquisition and maintenance
of a replacement investment.
(3) A cost not described in subdivision (1) or (2) that is incurred
by the fund in connection with a divestment transaction. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-7 "Direct holdings"
Sec. 7. As used in this chapter, "direct holdings" means all
securities of a company held directly by the fund or in an account in
which the fund owns all shares or interests. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-8 "Fund"
Sec. 8. As used in this chapter, "fund" refers to the following:
(1) The Indiana state teachers' retirement fund.
(2) The public employees' retirement fund. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-9 "Government of Sudan"
Sec. 9. (a) As used in this chapter, "government of Sudan" refers
to the government in Khartoum, Sudan, that is led by the National
Congress Party (formally known as the National Islamic Front) or
any successor government formed on or after October 13, 2006,
including the coalition National Unity Government agreed upon in
the Comprehensive Peace Agreement for Sudan.
(b) The term does not include the regional government of southern
Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-10 "Inactive business operations"
Sec. 10. As used in this chapter, "inactive business operations"
means the mere continued holding or renewal of rights to property
previously operated to generate revenues but not presently deployed
for such purpose. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-11 "Indirect holdings"
Sec. 11. As used in this chapter, "indirect holdings" means all
securities of a company:
(1) held in an account or a fund; and
(2) managed by one (1) or more persons not employed by the
fund, in which the fund owns shares or interests together with
other investors not subject to this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-12 "Marginalized populations of Sudan"
Sec. 12. As used in this chapter, "marginalized populations of
Sudan" includes the following:
(1) The part of the population in the Darfur region that has been
genocidally victimized.
(2) The part of the population of southern Sudan victimized by
Sudan's north-south civil war.
(3) The Beja, Rashidiya, and other similarly underserved groups
of eastern Sudan.
(4) The Nubian and other similarly underserved groups in
Sudan's Abyei, southern Blue Nile, and Nuba mountain regions.
(5) The Amri, Hamadab, Manasir, and other similarly
underserved groups of northern Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-13 "Military equipment"
Sec. 13. (a) As used in this chapter, "military equipment" means
weapons, arms, or military defense supplies provided directly or
indirectly to any force actively participating in the conflict in Sudan.
The term includes any equipment that readily may be used for
military purposes, including:
(1) radar systems; or
(2) military grade transport vehicles.
(b) The term does not include weapons, arms, or military defense
supplies sold to peacekeeping forces that may be dispatched to Sudan
by the United Nations or the African Union. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-14 "Mineral extraction activities"
Sec. 14. (a) As used in this chapter, "mineral extraction activities"
means the exploration, extraction, processing, transporting, or
wholesale sale of elemental minerals or associated metals or oxides,
including:
(1) gold;
(2) copper;
(3) chromium;
(4) chromite;
(5) diamonds;
(6) iron;
(7) iron ore;
(8) silver;
(9) tungsten;
(10) uranium; and
(11) zinc.
(b) The term includes the facilitation of mineral extraction
activities, including the provision of supplies or services in support
of mineral extraction activities. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-15 "Oil related activities"
Sec. 15. (a) As used in this chapter, "oil related activities"
includes:
(1) the export of oil;
(2) the extraction of or production of oil;
(3) the exploration for oil;
(4) the ownership of rights to oil blocks;
(5) the refining or processing of oil;
(6) the transportation of oil;
(7) the selling or trading of oil; or
(8) the construction or maintenance of a pipeline, a refinery, or
another oil field infrastructure.
(b) The term includes the facilitation of oil related activities,
including the provision of supplies or services in support of oil
related activities. The mere retail sale of gasoline and related
consumer products is not considered an oil related activity. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-16 "Power production activities"
Sec. 16. As used in this chapter, "power production activities"
means any business operation that involves a project commissioned
by the National Electricity Corporation of Sudan or other similar
entity of the government of Sudan whose purpose is to facilitate
power generation and delivery. The term includes the following:
(1) Establishing power generating plants or hydroelectric dams.
(2) Selling or installing components for power generating plants
or hydroelectric dams.
(3) Providing service contracts related to the installation or
maintenance of power generating plants or hydroelectric dams.
(4) Facilitating power production activities, including providing
supplies or services in support of power production activities. As added by P.L.149-2007, SEC.3. IC 5-10.2-9-17 "Research firm"
Sec. 17. As used in this chapter, "research firm" means a
reputable, neutral third party research firm not controlled by the
fund. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-18 "Scrutinized company"
Sec. 18. (a) As used in this chapter, "scrutinized company" means
a company that meets any of the following criteria:
(1) Both of the following apply to the company:
(A) The company has business operations that involve
contracts with or the provision of supplies or services to:
(i) the government of Sudan;
(ii) companies in which the government of Sudan has any
direct or indirect equity share;
(iii) consortiums or projects commissioned by the
government of Sudan; or
(iv) companies involved in consortiums or projects
commissioned by the government of Sudan.
(B) Either:
(i) more than ten percent (10%) of the company's revenues
or assets linked to Sudan involve oil related activities or
mineral extraction activities, and less than seventy-five
percent (75%) of the company's oil related or mineral
extracting revenues or assets linked to Sudan involve
contracts with the regional government of southern Sudan
or a project or consortium created exclusively by the
regional government, and the company has failed to take
substantial action; or
(ii) more than ten percent (10%) of the company's
revenues or assets linked to Sudan involve power
production activities and less than seventy-five percent
(75%) of the company's power production activities
include projects that are intended to provide power or
electricity to the marginalized populations of Sudan, and
the company has failed to take substantial action.
(2) The company is complicit in the Darfur genocide.
(3) The company supplies military equipment within Sudan,
unless the company implements safeguards to prevent the use
of the equipment by forces actively participating in armed
conflict in Sudan. This subdivision does not apply to companies
involved in the sale of military equipment solely to the regional
government of southern Sudan or any internationally recognized
peacekeeping force or humanitarian organization.
(b) The term does not include a social development company that
is not complicit in the Darfur genocide. As added by P.L.149-2007, SEC.3. IC 5-10.2-9-19 "Social development company"
Sec. 19. As used in this chapter, "social development company"
means a company whose primary purpose in Sudan is to provide
humanitarian goods or services, including:
(1) medicine or medical equipment;
(2) agricultural supplies or infrastructure;
(3) educational opportunities;
(4) journalism related activities;
(5) information or informational materials;
(6) spiritual related activities;
(7) services that are clerical or reporting in nature;
(8) food;
(9) clothing; or
(10) general consumer goods that are unrelated to oil related
activities, mineral extraction activities, or power production
activities. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-20 "Substantial action"
Sec. 20. As used in this chapter, "substantial action" means:
(1) adopting, publicizing, and implementing a formal plan to
cease scrutinized business operations within one (1) year and to
refrain from any new business operations;
(2) undertaking significant humanitarian efforts on behalf of
one (1) or more marginalized populations of Sudan; or
(3) materially improving conditions for the genocidally
victimized population in Darfur through engagement with the
government of Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-21 Identification of scrutinized companies
Sec. 21. (a) Not later than March 30, 2008, each board shall make
a good faith effort to identify all scrutinized companies in which the
fund administered by the board has direct or indirect holdings.
(b) In carrying out its responsibilities under subsection (a), and at
the board's discretion, each board may use existing research or
contract with a research firm.
(c) A board or a research firm with which the board contracts
under subsection (b) may take any of the following actions:
(1) Review publicly available information regarding companies
with business operations in Sudan.
(2) Contact other institutional investors that invest in companies
with business operations in Sudan.
(3) Contact asset managers contracted by the fund that invest in
companies with business operations in Sudan.
(d) Not later than the first meeting of the board after March 30,
2008, each board shall compile the names of all scrutinized
companies into a scrutinized company list and indicate whether each
scrutinized company has active or inactive business operations in
Sudan.
(e) Each board shall update its scrutinized company list at least on
an annual basis based on evolving information from sources
described in subsections (b) and (c). As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-22 Identification of holdings
Sec. 22. After a board creates or updates the scrutinized company
list under section 21 of this chapter, the board shall immediately
identify the companies on the scrutinized company list in which the
fund administered by the board has direct or indirect holdings. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-23 Notice to scrutinized company with inactive business operations
Sec. 23. (a) Each fund shall send to each scrutinized company:
(1) that is identified under section 22 of this chapter as one in
which the fund has direct or indirect holdings; and
(2) that has only inactive business operations;
a written notice concerning the contents of this chapter and a
statement encouraging the company to continue to refrain from
initiating active business operations in Sudan until the company is
able to avoid scrutinized business operations altogether.
(b) The fund shall continue to correspond on a semiannual basis
with scrutinized companies in which the fund has direct or indirect
holdings and that have only inactive business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-24 Notice to scrutinized company with active business operations
Sec. 24. (a) Each fund shall send to each scrutinized company:
(1) that is identified under section 22 of this chapter as one in
which the fund has direct or indirect holdings; and
(2) that has active business operations;
a written notice concerning the contents of this chapter and a
statement indicating that the fund's holdings in the company may
become subject to divestment by the fund.
(b) A notice sent under this section shall:
(1) offer the company the opportunity to clarify the company's
Sudan related activities; and
(2) encourage the company, within ninety (90) days after the
date of the written notice, to either:
(A) cease its scrutinized business operations; or
(B) convert the company's operations to inactive business
operations in order to avoid divestment by the fund of the
fund's holdings in the company. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-25 Compliance by a scrutinized company
Sec. 25. (a) If, within ninety (90) days after a fund's first
engagement with a company under section 24 of this chapter, the
company ceases scrutinized business operations, the company shall
be removed from the fund's scrutinized company list and the
provisions of sections 26, 27, 28, and 29 of this chapter shall cease
to apply to the company unless the company resumes scrutinized
business operations.
(b) If, within ninety (90) days after a fund first engages with a
company under section 24 of this chapter, the company converts its
scrutinized active business operations to inactive business
operations, the company shall be subject to the provisions of section
23 of this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-26 Divestment; exemption for certain commingled funds
Sec. 26. (a) Except as provided in sections 28 and 29 of this
chapter, if, after ninety (90) days after a fund's first engagement with
a company under section 24 of this chapter, the company continues
to have scrutinized active business operations, the fund shall sell,
redeem, divest, or withdraw all publicly traded securities of the
company that are held by the fund, as follows:
(1) At least fifty percent (50%) of such assets shall be removed
from the fund's assets under management within nine (9)
months after the company's appearance on the scrutinized
company list.
(2) One hundred percent (100%) of such assets shall be
removed from the fund's assets under management within
fifteen (15) months after the company's appearance on the
scrutinized company list.
(b) If a company that ceased scrutinized active business
operations following engagement under section 24 of this chapter
resumes scrutinized active business operations, and only while the
company continues to have active business operations, the company
shall immediately be placed back on the scrutinized company list. A
fund that has holdings in the company shall sell, redeem, divest, or
withdraw all publicly traded securities of the company as provided
in subsection (a) based on the date the company is placed back on the
scrutinized company list. The fund shall send a written notice to the
company indicating that the company was placed back on the
scrutinized company list and is subject to divestment.
(c) A board is not required to divest the board's holdings in a
passively managed commingled fund that includes a scrutinized
company with active business operations in Sudan if the estimated
cost of divestment of the commingled fund is greater than ten percent
(10%) of the total value of the scrutinized companies with active
business operations held in the commingled fund. The board shall
include any commingled fund that includes a scrutinized company
that is exempted from divestment under this subsection in the board's
report submitted to the legislative council under section 31 of this
chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-27 Acquisition of securities containing scrutinized companies
Sec. 27. Except as provided in sections 28 and 29 of this chapter,
a fund shall not acquire securities of companies on the scrutinized
company list that have active business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-28 Scrutinized company excluded from federal sanctions
Sec. 28. If the government of the United States affirmatively
declares any company on the scrutinized company list with active
business operations in Sudan to be excluded from any federal
sanctions relating to Sudan, the company is not subject to divestment
or investment prohibition under this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-29 Exclusion of indirect holdings in actively managed investment
funds
Sec. 29. Notwithstanding any provision to the contrary, sections
26 and 27 of this chapter do not apply to indirect holdings in actively
managed investment funds. However, if a fund has indirect holdings
in actively managed investment funds containing the securities of
scrutinized companies with active business operations, the fund shall
submit letters to the managers of the investment funds requesting that
the managers remove the scrutinized companies with active business
operations from the fund or create a similar actively managed fund
with indirect holdings without scrutinized companies with active
business operations. If the manager creates a similar fund, the fund
shall replace all applicable investments with investments in the
similar fund in a period consistent with prudent investing standards. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-30 Exclusion of private equity funds
Sec. 30. This chapter does not apply to private equity funds. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-31 Report to legislative council
Sec. 31. (a) On or before November 1, 2007, and thereafter as
directed by the legislative council, the board shall submit a report in
an electronic format under IC 5-14-6 to the legislative council for
distribution to the members of the general assembly.
(b) The report must include at least the following information, as
of the date of the report:
(1) A copy of the scrutinized company list.
(2) A summary of correspondence with companies engaged by
the fund under sections 23 and 24 of this chapter.
(3) All investments sold, redeemed, divested, or withdrawn in
compliance with section 26 of this chapter.
(4) All commingled funds that are exempted from divestment
under section 26 of this chapter.
(5) All prohibited investments under section 27 of this chapter.
(6) Any progress made under section 29 of this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-32 Expiration of chapter
Sec. 32. This chapter expires on the earliest of the following:
(1) Twelve (12) months after the date the government of Sudan
halts the genocide in Darfur as determined by the Congress of
the United States and the United States Department of State.
(2) The date the United States revokes its current sanctions
against the government of Sudan.
(3) The date Congress or the President of the United States,
through legislation or executive order, declares that mandatory
divestment of the type provided for in this chapter interferes
with the conduct of foreign policy for the United States.
(4) The date Congress or the President of the United States
declares that the government of Sudan:
(A) has honored its commitments to cease attacks on
civilians;
(B) demobilizes and demilitarizes the Janjaweed and
associated militias;
(C) grants free and unfettered access for deliveries of
humanitarian assistance; and
(D) allows for the safe and voluntary return of refugees and
international displaced persons. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-33 Exemption from conflicting statutory or common law obligations
Sec. 33. With respect to actions taken in compliance with this
chapter, including all good faith determinations regarding companies
on the scrutinized company list, the fund shall be exempt from any
conflicting statutory or common law obligations, including any
obligations with respect to choice of asset managers, investment
funds, or investments for fund securities portfolios. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-34 Cessation of divestment and reinvestment in scrutinized companies
Sec. 34. (a) Notwithstanding any provision to the contrary, the
fund shall be permitted to cease divesting and to reinvest in certain
scrutinized companies on the scrutinized company list with active
business operations in Sudan if evidence shows that the value for all
assets under management by the fund becomes equal to or less than
ninety-nine and five-tenths percent (99.5%) of the value of all assets
under management by the fund, including the companies divested
under section 26 of this chapter.
(b) As provided by this section, any cessation of divestment or
reinvestment shall be strictly limited to the minimum steps necessary
to avoid the contingency set forth in subsection (a).
(c) For any cessation of divestment, reinvestment, and subsequent
ongoing investment authorized by this section, the fund shall submit
a report in an electronic format under IC 5-14-6 to the legislative
council for distribution to the members of the general assembly in
advance of any initial reinvestment. The report shall be updated
annually thereafter as applicable, setting forth the reasons and
justifications for the decision to cease divestment, reinvest, or remain
invested with companies with scrutinized active business operations.
This section does not apply to companies that have ceased to have
scrutinized business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-35 Immunity; liability of the fund and its agents
Sec. 35. (a) Both:
(1) the state and its officers, agents, and employees; and
(2) the fund and its board members, executive director, officers,
agents, and employees;
are immune from civil liability for any act or omission related to the
removal of an asset from the fund under this chapter.
(b) In addition to the immunity provided under subsection (a),
both:
(1) the officers, agents, and employees of the state; and
(2) the board members, executive director, officers, agents, and
employees of the fund;
are entitled to indemnification from the fund for all losses, costs, and
expenses, including reasonable attorney's fees, associated with
defending against any claim or suit relating to an act authorized
under this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-36 Severability
Sec. 36. The provisions of this chapter are severable in the manner
provided in IC 1-1-1-8(b). As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-1 "Active business operations"
Sec. 1. As used in this chapter, "active business operations" means
all business operations that are not inactive business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-2 "Board"
Sec. 2. As used in this chapter, "board" refers to the following:
(1) The board of trustees of the Indiana state teachers'
retirement fund.
(2) The board of trustees of the public employees' retirement
fund. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-3 "Business operations"
Sec. 3. As used in this chapter, "business operations" means
engaging in any commerce in any form in Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-4 "Company"
Sec. 4. (a) As used in this chapter, "company" means any of the
following:
(1) A sole proprietorship.
(2) An organization.
(3) An association.
(4) A corporation.
(5) A partnership.
(6) A joint venture.
(7) A limited partnership.
(8) A limited liability partnership.
(9) A limited liability company.
(10) A business association.
(b) The term includes all wholly owned subsidiaries, majority
owned subsidiaries, parent companies, and affiliates of such entities
or business associations that exist for profit making purposes. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-5 "Complicit in Darfur genocide"
Sec. 5. For purposes of this chapter, a company is "complicit in
the Darfur genocide" if the company took any actions during the
preceding twenty (20) month period that directly support or promote
the genocidal campaign in the Darfur region of Sudan, including any
of the following:
(1) Preventing Darfur's victimized population from
communicating with each other.
(2) Encouraging Sudanese citizens to speak out against an
internationally approved security force in Darfur.
(3) Actively working to deny, cover up, or alter the record on
human rights abuses in Darfur. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-6 "Cost of divestment"
Sec. 6. As used in this chapter, "cost of divestment" means the
sum of the following:
(1) The costs associated with the sale, redemption, divestment,
or withdrawal of an investment.
(2) The costs associated with the acquisition and maintenance
of a replacement investment.
(3) A cost not described in subdivision (1) or (2) that is incurred
by the fund in connection with a divestment transaction. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-7 "Direct holdings"
Sec. 7. As used in this chapter, "direct holdings" means all
securities of a company held directly by the fund or in an account in
which the fund owns all shares or interests. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-8 "Fund"
Sec. 8. As used in this chapter, "fund" refers to the following:
(1) The Indiana state teachers' retirement fund.
(2) The public employees' retirement fund. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-9 "Government of Sudan"
Sec. 9. (a) As used in this chapter, "government of Sudan" refers
to the government in Khartoum, Sudan, that is led by the National
Congress Party (formally known as the National Islamic Front) or
any successor government formed on or after October 13, 2006,
including the coalition National Unity Government agreed upon in
the Comprehensive Peace Agreement for Sudan.
(b) The term does not include the regional government of southern
Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-10 "Inactive business operations"
Sec. 10. As used in this chapter, "inactive business operations"
means the mere continued holding or renewal of rights to property
previously operated to generate revenues but not presently deployed
for such purpose. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-11 "Indirect holdings"
Sec. 11. As used in this chapter, "indirect holdings" means all
securities of a company:
(1) held in an account or a fund; and
(2) managed by one (1) or more persons not employed by the
fund, in which the fund owns shares or interests together with
other investors not subject to this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-12 "Marginalized populations of Sudan"
Sec. 12. As used in this chapter, "marginalized populations of
Sudan" includes the following:
(1) The part of the population in the Darfur region that has been
genocidally victimized.
(2) The part of the population of southern Sudan victimized by
Sudan's north-south civil war.
(3) The Beja, Rashidiya, and other similarly underserved groups
of eastern Sudan.
(4) The Nubian and other similarly underserved groups in
Sudan's Abyei, southern Blue Nile, and Nuba mountain regions.
(5) The Amri, Hamadab, Manasir, and other similarly
underserved groups of northern Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-13 "Military equipment"
Sec. 13. (a) As used in this chapter, "military equipment" means
weapons, arms, or military defense supplies provided directly or
indirectly to any force actively participating in the conflict in Sudan.
The term includes any equipment that readily may be used for
military purposes, including:
(1) radar systems; or
(2) military grade transport vehicles.
(b) The term does not include weapons, arms, or military defense
supplies sold to peacekeeping forces that may be dispatched to Sudan
by the United Nations or the African Union. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-14 "Mineral extraction activities"
Sec. 14. (a) As used in this chapter, "mineral extraction activities"
means the exploration, extraction, processing, transporting, or
wholesale sale of elemental minerals or associated metals or oxides,
including:
(1) gold;
(2) copper;
(3) chromium;
(4) chromite;
(5) diamonds;
(6) iron;
(7) iron ore;
(8) silver;
(9) tungsten;
(10) uranium; and
(11) zinc.
(b) The term includes the facilitation of mineral extraction
activities, including the provision of supplies or services in support
of mineral extraction activities. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-15 "Oil related activities"
Sec. 15. (a) As used in this chapter, "oil related activities"
includes:
(1) the export of oil;
(2) the extraction of or production of oil;
(3) the exploration for oil;
(4) the ownership of rights to oil blocks;
(5) the refining or processing of oil;
(6) the transportation of oil;
(7) the selling or trading of oil; or
(8) the construction or maintenance of a pipeline, a refinery, or
another oil field infrastructure.
(b) The term includes the facilitation of oil related activities,
including the provision of supplies or services in support of oil
related activities. The mere retail sale of gasoline and related
consumer products is not considered an oil related activity. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-16 "Power production activities"
Sec. 16. As used in this chapter, "power production activities"
means any business operation that involves a project commissioned
by the National Electricity Corporation of Sudan or other similar
entity of the government of Sudan whose purpose is to facilitate
power generation and delivery. The term includes the following:
(1) Establishing power generating plants or hydroelectric dams.
(2) Selling or installing components for power generating plants
or hydroelectric dams.
(3) Providing service contracts related to the installation or
maintenance of power generating plants or hydroelectric dams.
(4) Facilitating power production activities, including providing
supplies or services in support of power production activities. As added by P.L.149-2007, SEC.3. IC 5-10.2-9-17 "Research firm"
Sec. 17. As used in this chapter, "research firm" means a
reputable, neutral third party research firm not controlled by the
fund. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-18 "Scrutinized company"
Sec. 18. (a) As used in this chapter, "scrutinized company" means
a company that meets any of the following criteria:
(1) Both of the following apply to the company:
(A) The company has business operations that involve
contracts with or the provision of supplies or services to:
(i) the government of Sudan;
(ii) companies in which the government of Sudan has any
direct or indirect equity share;
(iii) consortiums or projects commissioned by the
government of Sudan; or
(iv) companies involved in consortiums or projects
commissioned by the government of Sudan.
(B) Either:
(i) more than ten percent (10%) of the company's revenues
or assets linked to Sudan involve oil related activities or
mineral extraction activities, and less than seventy-five
percent (75%) of the company's oil related or mineral
extracting revenues or assets linked to Sudan involve
contracts with the regional government of southern Sudan
or a project or consortium created exclusively by the
regional government, and the company has failed to take
substantial action; or
(ii) more than ten percent (10%) of the company's
revenues or assets linked to Sudan involve power
production activities and less than seventy-five percent
(75%) of the company's power production activities
include projects that are intended to provide power or
electricity to the marginalized populations of Sudan, and
the company has failed to take substantial action.
(2) The company is complicit in the Darfur genocide.
(3) The company supplies military equipment within Sudan,
unless the company implements safeguards to prevent the use
of the equipment by forces actively participating in armed
conflict in Sudan. This subdivision does not apply to companies
involved in the sale of military equipment solely to the regional
government of southern Sudan or any internationally recognized
peacekeeping force or humanitarian organization.
(b) The term does not include a social development company that
is not complicit in the Darfur genocide. As added by P.L.149-2007, SEC.3. IC 5-10.2-9-19 "Social development company"
Sec. 19. As used in this chapter, "social development company"
means a company whose primary purpose in Sudan is to provide
humanitarian goods or services, including:
(1) medicine or medical equipment;
(2) agricultural supplies or infrastructure;
(3) educational opportunities;
(4) journalism related activities;
(5) information or informational materials;
(6) spiritual related activities;
(7) services that are clerical or reporting in nature;
(8) food;
(9) clothing; or
(10) general consumer goods that are unrelated to oil related
activities, mineral extraction activities, or power production
activities. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-20 "Substantial action"
Sec. 20. As used in this chapter, "substantial action" means:
(1) adopting, publicizing, and implementing a formal plan to
cease scrutinized business operations within one (1) year and to
refrain from any new business operations;
(2) undertaking significant humanitarian efforts on behalf of
one (1) or more marginalized populations of Sudan; or
(3) materially improving conditions for the genocidally
victimized population in Darfur through engagement with the
government of Sudan. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-21 Identification of scrutinized companies
Sec. 21. (a) Not later than March 30, 2008, each board shall make
a good faith effort to identify all scrutinized companies in which the
fund administered by the board has direct or indirect holdings.
(b) In carrying out its responsibilities under subsection (a), and at
the board's discretion, each board may use existing research or
contract with a research firm.
(c) A board or a research firm with which the board contracts
under subsection (b) may take any of the following actions:
(1) Review publicly available information regarding companies
with business operations in Sudan.
(2) Contact other institutional investors that invest in companies
with business operations in Sudan.
(3) Contact asset managers contracted by the fund that invest in
companies with business operations in Sudan.
(d) Not later than the first meeting of the board after March 30,
2008, each board shall compile the names of all scrutinized
companies into a scrutinized company list and indicate whether each
scrutinized company has active or inactive business operations in
Sudan.
(e) Each board shall update its scrutinized company list at least on
an annual basis based on evolving information from sources
described in subsections (b) and (c). As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-22 Identification of holdings
Sec. 22. After a board creates or updates the scrutinized company
list under section 21 of this chapter, the board shall immediately
identify the companies on the scrutinized company list in which the
fund administered by the board has direct or indirect holdings. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-23 Notice to scrutinized company with inactive business operations
Sec. 23. (a) Each fund shall send to each scrutinized company:
(1) that is identified under section 22 of this chapter as one in
which the fund has direct or indirect holdings; and
(2) that has only inactive business operations;
a written notice concerning the contents of this chapter and a
statement encouraging the company to continue to refrain from
initiating active business operations in Sudan until the company is
able to avoid scrutinized business operations altogether.
(b) The fund shall continue to correspond on a semiannual basis
with scrutinized companies in which the fund has direct or indirect
holdings and that have only inactive business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-24 Notice to scrutinized company with active business operations
Sec. 24. (a) Each fund shall send to each scrutinized company:
(1) that is identified under section 22 of this chapter as one in
which the fund has direct or indirect holdings; and
(2) that has active business operations;
a written notice concerning the contents of this chapter and a
statement indicating that the fund's holdings in the company may
become subject to divestment by the fund.
(b) A notice sent under this section shall:
(1) offer the company the opportunity to clarify the company's
Sudan related activities; and
(2) encourage the company, within ninety (90) days after the
date of the written notice, to either:
(A) cease its scrutinized business operations; or
(B) convert the company's operations to inactive business
operations in order to avoid divestment by the fund of the
fund's holdings in the company. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-25 Compliance by a scrutinized company
Sec. 25. (a) If, within ninety (90) days after a fund's first
engagement with a company under section 24 of this chapter, the
company ceases scrutinized business operations, the company shall
be removed from the fund's scrutinized company list and the
provisions of sections 26, 27, 28, and 29 of this chapter shall cease
to apply to the company unless the company resumes scrutinized
business operations.
(b) If, within ninety (90) days after a fund first engages with a
company under section 24 of this chapter, the company converts its
scrutinized active business operations to inactive business
operations, the company shall be subject to the provisions of section
23 of this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-26 Divestment; exemption for certain commingled funds
Sec. 26. (a) Except as provided in sections 28 and 29 of this
chapter, if, after ninety (90) days after a fund's first engagement with
a company under section 24 of this chapter, the company continues
to have scrutinized active business operations, the fund shall sell,
redeem, divest, or withdraw all publicly traded securities of the
company that are held by the fund, as follows:
(1) At least fifty percent (50%) of such assets shall be removed
from the fund's assets under management within nine (9)
months after the company's appearance on the scrutinized
company list.
(2) One hundred percent (100%) of such assets shall be
removed from the fund's assets under management within
fifteen (15) months after the company's appearance on the
scrutinized company list.
(b) If a company that ceased scrutinized active business
operations following engagement under section 24 of this chapter
resumes scrutinized active business operations, and only while the
company continues to have active business operations, the company
shall immediately be placed back on the scrutinized company list. A
fund that has holdings in the company shall sell, redeem, divest, or
withdraw all publicly traded securities of the company as provided
in subsection (a) based on the date the company is placed back on the
scrutinized company list. The fund shall send a written notice to the
company indicating that the company was placed back on the
scrutinized company list and is subject to divestment.
(c) A board is not required to divest the board's holdings in a
passively managed commingled fund that includes a scrutinized
company with active business operations in Sudan if the estimated
cost of divestment of the commingled fund is greater than ten percent
(10%) of the total value of the scrutinized companies with active
business operations held in the commingled fund. The board shall
include any commingled fund that includes a scrutinized company
that is exempted from divestment under this subsection in the board's
report submitted to the legislative council under section 31 of this
chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-27 Acquisition of securities containing scrutinized companies
Sec. 27. Except as provided in sections 28 and 29 of this chapter,
a fund shall not acquire securities of companies on the scrutinized
company list that have active business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-28 Scrutinized company excluded from federal sanctions
Sec. 28. If the government of the United States affirmatively
declares any company on the scrutinized company list with active
business operations in Sudan to be excluded from any federal
sanctions relating to Sudan, the company is not subject to divestment
or investment prohibition under this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-29 Exclusion of indirect holdings in actively managed investment
funds
Sec. 29. Notwithstanding any provision to the contrary, sections
26 and 27 of this chapter do not apply to indirect holdings in actively
managed investment funds. However, if a fund has indirect holdings
in actively managed investment funds containing the securities of
scrutinized companies with active business operations, the fund shall
submit letters to the managers of the investment funds requesting that
the managers remove the scrutinized companies with active business
operations from the fund or create a similar actively managed fund
with indirect holdings without scrutinized companies with active
business operations. If the manager creates a similar fund, the fund
shall replace all applicable investments with investments in the
similar fund in a period consistent with prudent investing standards. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-30 Exclusion of private equity funds
Sec. 30. This chapter does not apply to private equity funds. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-31 Report to legislative council
Sec. 31. (a) On or before November 1, 2007, and thereafter as
directed by the legislative council, the board shall submit a report in
an electronic format under IC 5-14-6 to the legislative council for
distribution to the members of the general assembly.
(b) The report must include at least the following information, as
of the date of the report:
(1) A copy of the scrutinized company list.
(2) A summary of correspondence with companies engaged by
the fund under sections 23 and 24 of this chapter.
(3) All investments sold, redeemed, divested, or withdrawn in
compliance with section 26 of this chapter.
(4) All commingled funds that are exempted from divestment
under section 26 of this chapter.
(5) All prohibited investments under section 27 of this chapter.
(6) Any progress made under section 29 of this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-32 Expiration of chapter
Sec. 32. This chapter expires on the earliest of the following:
(1) Twelve (12) months after the date the government of Sudan
halts the genocide in Darfur as determined by the Congress of
the United States and the United States Department of State.
(2) The date the United States revokes its current sanctions
against the government of Sudan.
(3) The date Congress or the President of the United States,
through legislation or executive order, declares that mandatory
divestment of the type provided for in this chapter interferes
with the conduct of foreign policy for the United States.
(4) The date Congress or the President of the United States
declares that the government of Sudan:
(A) has honored its commitments to cease attacks on
civilians;
(B) demobilizes and demilitarizes the Janjaweed and
associated militias;
(C) grants free and unfettered access for deliveries of
humanitarian assistance; and
(D) allows for the safe and voluntary return of refugees and
international displaced persons. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-33 Exemption from conflicting statutory or common law obligations
Sec. 33. With respect to actions taken in compliance with this
chapter, including all good faith determinations regarding companies
on the scrutinized company list, the fund shall be exempt from any
conflicting statutory or common law obligations, including any
obligations with respect to choice of asset managers, investment
funds, or investments for fund securities portfolios. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-34 Cessation of divestment and reinvestment in scrutinized companies
Sec. 34. (a) Notwithstanding any provision to the contrary, the
fund shall be permitted to cease divesting and to reinvest in certain
scrutinized companies on the scrutinized company list with active
business operations in Sudan if evidence shows that the value for all
assets under management by the fund becomes equal to or less than
ninety-nine and five-tenths percent (99.5%) of the value of all assets
under management by the fund, including the companies divested
under section 26 of this chapter.
(b) As provided by this section, any cessation of divestment or
reinvestment shall be strictly limited to the minimum steps necessary
to avoid the contingency set forth in subsection (a).
(c) For any cessation of divestment, reinvestment, and subsequent
ongoing investment authorized by this section, the fund shall submit
a report in an electronic format under IC 5-14-6 to the legislative
council for distribution to the members of the general assembly in
advance of any initial reinvestment. The report shall be updated
annually thereafter as applicable, setting forth the reasons and
justifications for the decision to cease divestment, reinvest, or remain
invested with companies with scrutinized active business operations.
This section does not apply to companies that have ceased to have
scrutinized business operations. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-35 Immunity; liability of the fund and its agents
Sec. 35. (a) Both:
(1) the state and its officers, agents, and employees; and
(2) the fund and its board members, executive director, officers,
agents, and employees;
are immune from civil liability for any act or omission related to the
removal of an asset from the fund under this chapter.
(b) In addition to the immunity provided under subsection (a),
both:
(1) the officers, agents, and employees of the state; and
(2) the board members, executive director, officers, agents, and
employees of the fund;
are entitled to indemnification from the fund for all losses, costs, and
expenses, including reasonable attorney's fees, associated with
defending against any claim or suit relating to an act authorized
under this chapter. As added by P.L.149-2007, SEC.3.
IC 5-10.2-9-36 Severability
Sec. 36. The provisions of this chapter are severable in the manner
provided in IC 1-1-1-8(b). As added by P.L.149-2007, SEC.3.
