AMENDED AND RESTATED LIMITED LIABILITY COMPANY
OPERATING AGREEMENT OF
LCH CLEARNET, LLC Dated: 25 April 2013
This Amended and Restated Limited Liability Company Operating Agreement (this "Agreement") of LCH Clearnet LLC, a Delaware limited liability company (the "Company"), is made and entered into as of 25 April 2013, by LCH Clearnet (US) LLC, a Delaware limited liability company as the sole member (the "Member").
WHEREAS, the Company was formed by International Derivatives Exchange Group, LLC (the "Initial Member") pursuant to a Certificate of Formation, dated December 6, 2007, which was executed and filed with the Secretary of State of the State of Delaware on December 6, 2007;
WHEREAS, the Initial Member entered into the Limited Liability Company Operating Agreement of the Company dated as of July 10, 2008, as amended on December 11, 2008 (the "LLC Agreement");
WHEREAS, the name the Company was changed to IDE Clearinghouse, LLC, pursuant to an Amendment to its Certificate of Formation, which was executed and filed with the Secretary of State of the State of Delaware on June 20, 2008;
WHEREAS, the name of the Company was further changed to International Derivatives Clearinghouse, LLC pursuant to an Amendment to its Certificate of Formation, which was executed and filed with the Secretary of State of the State of Delaware on July 29, 2008;
WHEREAS, the Initial Member entered into an Agreement and Plan of Merger, dated August 14, 2012, by and among (i) LCH.Clearnet Group Limited, (ii) LCH.Clearnet (US) LLC, a Delaware limited liability company and a direct wholly owned subsidiary of LCH.Clearnet Group Limited ("Merger Sub"), (iii) the Initial Member, and (iv) NASDAQ OMX Group, Inc., a Delaware corporation, pursuant to which Merger Sub merged with and into the Initial Member, with the Initial Member continuing as the surviving company (the "Merger");
WHEREAS, as a result of the Merger, the name of the Company was further changed to LCH.Clearnet LLC pursuant to an Amendment to its Certificate of Formation which was executed and filed with the Secretary of State of the State of Delaware on August 14, 2012;
WHEREAS, the LLC Agreement may be amended with the written consent of its sole member; and
WHEREAS it is the intention of the Member that the LLC Agreement be amended and restated in its entirety as set forth herein, effective as of the date first written above.
NOW, THEREFORE, the parties hereby agree as follows: ARTICLE I
General Provisions 1.1 Definitions. In this Agreement:
CCO means the chief compliance officer of the Company.
Conflict of Interest means a situation in which a director has, or can have, an interest which conflicts, or possibly may conflict, with the interests of the Company.
Eligible Institution has the meaning ascribed to it in the articles of association of LCH.Clearnet Group Limited from time to time.
LCH Group means LCH.Clearnet Group Limited and its subsidiaries from
time to time.
LSEG means London Stock Exchange Group plc.
LSEG Group means LSEG and its subsidiaries from time to time other than
those entities comprising the LCH Group.
Regulatory Requirements means, with respect to the Company, any
regulation or requirement of applicable law or of any applicable regulatory body or any request of any applicable regulatory body, with which failure to comply would result or would reasonably be expected by the Company to result in the withdrawal of authorisation necessary to conduct clearing business in any relevant jurisdiction or other disciplinary or enforcement action that would have a material adverse effect on the ability of any member of the LCH Group to conduct clearing business in any relevant jurisdiction.
Relationship Agreement means the relationship agreement entered into on or
around the date of adoption of this Agreement by LCH.Clearnet Group Limited, LSEG and London Stock Exchange (C) Limited.
Significant Interest means the entitlement to exercise or control the exercise of at least 40 per cent. of the votes able to be cast on all or substantially all matters at general meetings of LCH.Clearnet Group Limited.
1.2 Organization. The Company was organized pursuant to the provisions of the Delaware Limited Liability Company Act (the "Act").
1.3 Name. The name of the Company is LCH.Clearnet, LLC.
1.4 Principal Office. The address of the principal office of the Company in the
State of Delaware is The Corporation Trust Company and the street address of its registered office is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
1.5 Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is The Corporation Trust Company.
1.6 Member. The name of the Member is set forth above in the preamble to this Agreement.
1.7 Nature of Business. The Company shall be engaged in the business of
operating a derivatives clearing organization (“DCO”) in accordance with the Commodity Exchange Act, as amended (“CEA”), and the rules and regulations promulgated by the Commodity Futures Trading Commission (“CFTC”) thereunder and may conduct all business related or incidental to such business as permitted by the Act or the laws of any jurisdiction in which the Company may do business. The Company shall have the authority to do all things necessary or convenient to accomplish its purpose and operate its business as described in this Article.
ARTICLE II Management
2.1 Core Operating Principles. The business of the Company will be managed in
a manner that is consistent with LCH.Clearnet Group Limited being run at all times in accordance with the Core Operating Principles set out in the Relationship Agreement.
2.2 The Board of Directors.
(a) Except as otherwise expressly required by the Act, by this Agreement
or by the Relationship Agreement, the business and affairs of the Company shall be managed by or under the direction of a Board of Directors (the "Board"). The Board shall be deemed to be a board of managers, and each director shall be deemed to be a "Manager," for purposes of the Act. Other than rights and powers expressly reserved herein to the Members and authority delegated to officers of the Company in accordance with Section 2.23 hereof and the Relationship Agreement, the Board shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company, to make all decisions affecting the business and affairs of the Company and to take all such actions as it deems necessary or appropriate to accomplish the purposes of the Company as set forth herein.
(b) The Board shall be appointed by the Member, and may initially consist
of the same individuals serving on the board of directors of the Member. The nomination committee of LCH Group (the “Nomination Committee”) may by notice in writing to the Member nominate candidates at any time and from time to time to be Directors in accordance with the terms of reference of the Nomination Committee.
(c) The Board shall consist of at least three (3) but not more than fifteen
(15) individuals (the "Directors"), the exact number to be determined from time to time by the Member. At least 35%, but no fewer than two, of the Directors must be “Public Directors” as that term is defined in CFTC Regulation 1.3(ccc). The membership of the Board shall at all times comply with any requirements relating to the composition of DCO boards established by the CFTC from time to time.
2.3 Remuneration. Subject to any board reserved matters of the Company, the Directors shall be entitled to such remuneration as the board of Managers may determine, provided that no Public Director or non-executive Director may receive performance-based compensation for service as a Director. Unless the board of Directors determines otherwise, the remuneration shall be deemed to accrue from day to day.
2.4 Alternate Directors.
(a) Any Director (the "appointer") may appoint as an alternative any other
Director or Officer to (i) exercise that Director's powers; and (ii) carry out that Director's responsibilities in relation to taking of decisions by the Director in the absence of the alternate's appointer. A Director may be appointed as an alternate Director to represent more than one Director. An alternate director cannot appoint an alternate.
(b) Any appointment or removal of an alternate must be effected by notice
in writing to the Company signed by the appointer, or in any other manner approved by the Directors. The appointment or removal shall take effect when received by the Company or on such later date (if any) specified in the notice. The notice must identify the proposed alternate.
(c) A Public Director may only appoint an alternate who qualifies as a
Public Director, and any purported appointment of an alternate who does not so qualify will
be void ab initio.
2.6 Rights and Responsibilities of Alternate Directors
(a) An alternate Director has the same rights, in relation to any Directors
meeting or any decision taken in accordance with this Agreement, as the alternate's appointer.
(b) Except as the articles specify otherwise, an alternate Director (i) is
liable for his own acts and omissions; (ii) is subject to the same restrictions as his appointer; (iii) is not deemed to be an agent of or for his appointer; and (iv) is entitled to receive notice of all Director's meetings and of all meetings of committees of Directors of which his appointer is a member.
(c) An alternate Director is not entitled to receive any remuneration from
the Company for serving as an alternate Director except such part of the alternate’s appointer’s remuneration as the appointer may direct by notice in writing to the Company.
2.7 Termination of Alternative Appointment. An alternate Director's appointment
as an alternate terminates:
(a) in accordance with the terms of a notice in writing from the alternate’s
appointer to the Company revoking the appointment and specifying when it is to terminate;
(b) on the occurrence of any event in relation to the alternate which, if it
occurred in relation to the alternate’s appointer, would result in the termination of the appointer’s appointment as a Director;
(d) when the alternate’s appointer’s appointment as a Director terminates; or
(e) if he resigns by notice in writing to the Company and such resignation
has taken effect in accordance with its terms.
2.8 Meetings. Meetings of the Board, for any purpose, may be called by the Chairman or the Member and shall be called by the Chairman on the written request of any two Directors. The Chairman may designate any place either within or outside of the State of Delaware as the place of the meeting before any meeting of the Board. If no designation is made, the place of meeting shall be the Company's principal place of business. Written notice stating the place, day and hour of the meeting, and the general purpose or purposes for which the meeting is called, shall be delivered not less than two (2) nor more than thirty (30) days before the date of the meeting; provided, however, that if all of the Directors shall meet at any time and place, either within or outside of the State of Delaware, such meeting shall be valid without call or notice, and at such meeting any lawful action may be taken.
2.9 Quorum; Voting. A majority of the Board, by number, shall constitute a
quorum at any meeting of the Board. In the absence of a quorum at any such meeting, a majority of the Board present may adjourn the meeting from time to time for a period not to exceed sixty (60) days without further notice. If a quorum is present, a vote of the majority of the Board present shall be the act of the Board.
2.10 Action by Board Without a Meeting. Any action required or permitted to be taken at a meeting of the Board or by any committee thereof may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by all of the Directors or committee members, and such written consents shall be delivered for inclusion in the minutes or for filing with the Company records. Consents may be executed in counterparts.
2.11 Meeting by Telephone or Other Communication Technology. Any or all Directors may participate in a meeting by, or conduct the meeting through the use of, telephone or other means of communication by which either: (i) all participating Directors may simultaneously hear each other during the meeting, or (ii) all communication during the meeting is immediately transmitted to each participating Director, and each participating Director is able to immediately send messages to all other participating Directors. A Director participating in a meeting by any means described herein is deemed to be present in person at the meeting.
2.12 Conflicts.
(a) Subject to Article 2.12(r) and applicable Regulatory Requirements
relating to Public Directors, a Director shall be authorised by the Board to act or continue to act as a Director of the Company notwithstanding that at the time of his/her appointment or subsequently he/she also:
(i) holds office as a director of, or holds any other office or
employment with, any other member of the LCH Group or the LSEG Group;
(ii) holds office as a director of, or holds any other office or
(iii) participates in any scheme, transaction or arrangement for the benefit of the employees or former employees of the Company or any other member of the LCH Group or the LSEG Group (including any pension fund or retirement, death or disability scheme or other bonus or employee benefit scheme); or
(iv) is interested directly or indirectly in any shares or debentures
(or any rights to acquire shares or debentures) in the Company or any other member of the LCH Group or the LSEG Group;
and such authorisation shall also apply to a conflicting interest or duty that subsequently arises as a result of such office, employment, participation or interest.
(b) A majority of the Public Directors (in consultation with the CCO (or
his or her designee)) may, in accordance with Article 2.12(r), authorise any matter proposed to them which would, if not so authorised, involve a breach by a Director of his/her duty to avoid Conflicts of Interest.
(c) Any authorisation under Article 2.12(b) will be effective only if:
(i) any requirement as to the quorum at the Board meeting at
which the matter is considered is met without counting the Director in question or any other Director interested in the matter under consideration; and
(ii) the matter was agreed to without such Directors voting or
would have been agreed to if such Directors' votes had not been counted.
(d) The Board may give any authorisation under Article 2.12(b) upon such
terms as it thinks fit. The Board may vary or terminate any such authorisation at any time.
(e) For the purposes of this Article 2.12, a Conflict of Interest includes a
conflict of interest and duty and a conflict of duties, and interest includes both direct and indirect interests.
(f) A Director shall be under no duty to the Company with respect to any
information which he/she obtains or has obtained otherwise than as a Director and in respect of which he/she owes a duty of confidentiality to another person. In particular the Director shall not be in breach of the general duties he/she owes to the Company if he/she:
(i) fails to disclose any such information to the Board or to any
Director or other officer or employee of the Company; or
(ii) does not use or apply any such information in performing
his/her duties as a Director.
However, to the extent that his/her relationship with that other person gives rise to a Conflict of Interest or possible Conflict of Interest, this Article 2.12(f) applies only if the existence of that relationship has been authorised pursuant to Articles 2.12(a) or 2.12(b).
(g) Where the existence of a Director's relationship with another person
has been authorised pursuant to Articles 2.12(a) or 2.12(b) and his/her relationship with that person gives rise to a Conflict of Interest or possible Conflict of Interest, such Director shall
not be in breach of the general duties he/she owes to the Company if at his/her discretion or at the request or direction of the Board or any committee he/she:
(i) absents him/herself from a meeting of the Board or a committee
at which any matter relating to the Conflict of Interest or possible Conflict of Interest will or may be discussed or from the discussion of any such matter at a meeting or otherwise; or
(ii) makes arrangements not to receive documents and information
relating to any matter which gives rise to the Conflict of Interest or possible Conflict of Interest sent or supplied by or on behalf of the Company or for such documents and information to be received and read by a professional adviser on his/her behalf;
for so long as he/she reasonably believes such Conflict of Interest (or possible Conflict of Interest) subsists.
(h) The provisions of Articles 2.12(f) and 2.12(g) are without prejudice to
any equitable principle or rule of law which may excuse the Director from:
(i) disclosing information, in circumstances where disclosure
would otherwise be required under this Agreement; or
(ii) attending meetings or discussions or receiving documents and
information as referred to in Article 2.12(g), in circumstances where such attendance or
receiving such documents and information would otherwise be required under these Terms of Reference.
(i) A Director who is in any way, directly or indirectly, interested in a
proposed transaction or arrangement with the Company shall declare the nature and extent of his/her interest to the Board before the Company enters into the transaction or arrangement.
(j) A Director who is in any way, directly or indirectly, interested in a
transaction or arrangement that has been entered into by the Company shall declare the nature and extent of his/her interest to the Board as soon as is reasonably practicable, unless the interest has already been declared under Article 2.12(i).
(k) Any declaration required by Article 2.12(i) may (but need not) be
made at a Board meeting or by notice in writing. Any declaration required by Article 2.12(j) must be made at a Board meeting or by notice in writing.
(l) If a declaration made under Article 2.12(i) or 2.12(j) proves to be, or
becomes, inaccurate or incomplete, a further declaration must be made as appropriate.
(m) A Director needs not declare an interest under this Article 2.12:
(i) if it cannot reasonably be regarded as likely to give rise to a
Conflict of Interest;
(ii) if, or to the extent that, the Board is already aware of it (and for
this purpose the Board is treated as aware of anything of which it ought reasonably to be aware);
(iii) if he/she is not aware of his/her interest or is not aware of the transaction or arrangement in question (and for this purpose a Director is treated as being aware of matters of which he/she ought reasonably to be aware).
(n) Subject to the Regulatory Requirements and provided that he/she has
declared the nature and extent of any direct or indirect interest of his/hers in accordance with this Article 2.12, where Article 2.12(m) applies and no declaration of interest is required, or where Article 2.12(a) applies, a Director notwithstanding his/her office:
(i) may be a party to, or otherwise be interested in, any transaction
or arrangement with the Company or in which the Company is directly or indirectly interested;
(ii) may act by him/herself or through his/her firm in a professional
capacity for the Company (otherwise than as auditor), and in any such case on such terms as to remuneration and otherwise as the Board may decide; or
(iii) may be a director or other officer of, or employed by, or a party
to any transaction or arrangement with, or otherwise be interested in, any corporate body:
(a) in which the Company is directly or indirectly interested
as shareholder or otherwise; or
(b) which is the parent undertaking of the Company or a
subsidiary undertaking of any parent undertaking of the Company; or
(c) with which he/she has such a relationship at the request
or direction of the Company or any parent undertaking of the Company or a subsidiary undertaking of any parent undertaking of the Company.
(o) A Director shall not, by reason of his/her office, be accountable to the
Company for any remuneration or other benefit which he/she derives from any office or employment or from any transaction or arrangement or from any interest in any body corporate:
(i) the acceptance, entry into or existence of which has been
authorised pursuant to Articles 2.12(a) or 2.12(b); or
(ii) which he/she is permitted to hold or enter into pursuant to
Article 2.12(n) or otherwise pursuant to these Terms of Reference;
nor shall the receipt of any such remuneration or other benefit constitute a breach of his/her duty not to accept benefits from third parties. No transaction or arrangement authorised or permitted pursuant to Article 2.12(a), 2.12(b) or 2.12(n) or otherwise pursuant to this Agreement shall be liable to be avoided on the ground of any such interest or benefit.
(p) Subject to the terms of the Relationship Agreement, a Director
appointed by a Member of LCH.Clearnet Group Limited (or that Director's alternate) may not provide to the Member of LCH.Clearnet Group Limited which appointed him any information which he or she receives by virtue of being a Director without the consent of a majority of the Public Directors. The Public Directors may give such consent either
generally or in relation to specific information, and may vary or withdraw such consent at their absolute discretion.
(q) Without prejudice to the Director’s disclosure obligations under the
law and these Terms of Reference, but subject to Articles 2.12(b) above and 2.12(r) below, a Director may:
(i) vote at any meeting of the Board or of a committee on any
resolution and be counted in the quorum present at a meeting in relation to any resolution; or
(ii) participate in any decision unanimously taken;
concerning a transaction or arrangement with the Company or in which the Company is interested, or concerning any other matter in which the Company is interested, notwithstanding that the Director is interested in that transaction, arrangement or matter or has in relation to it a duty which conflicts or may conflict with the interests of the Company in relation to it.
(r) If a majority of the Public Directors (in consultation with the CCO (or
his or her designee)) determine that there is a conflict of interest, pursuant to Articles 2.12(a) to 2.12(o), between:
(a) a shareholder of LCH.Clearnet Group Limited which is
connected to a Director by virtue of his employment or directorship (a "Conflicted Shareholder") and (ii) the Company or any other member of the LCH Group due to litigation, arbitration or other dispute, or the proposed entry into, material variation or termination of a contract, between any member of the LCH Group and the Conflicted Shareholder; or
(b) (i) a Conflicted Shareholder other than LSEG and (ii) the
Company or any other member of the LCH Group due to a matter other than those set out in (a) above;
each of (a) and (b) being a "Conflict Situation", then any Director connected to such
Conflicted Shareholder shall not be entitled to attend any meeting (or part of a meeting) or participate in discussions or vote on any resolution at meetings of the Board or any committee which relate to the relevant Conflict Situation, or to receive confidential information concerning such Conflict Situation, unless a majority of the Public Directors, in consultation with the CCO (or his or her designee) agree otherwise.
2.13 Interests of alternate directors, in relation to an alternate director, the interest of his appointor is treated as the interest of the alternate director in addition to any interest which the alternate director otherwise has. Article 2.12 applies to an alternate director as if he were a director otherwise appointed.
2.14 Vacancies. Any vacancies occurring on the Board shall be filled by the Member in accordance with the requirements of Section 2.2(b) and (c) of this Agreement. A Director chosen to fill a vacancy shall serve the unexpired term of the Director's predecessor in office.
2.15 Vacation of Office by Director. The office of a director shall be vacated if:
(a) he ceases to be a director by virtue of any provision of the Act or he
becomes prohibited by law from being a director;
(b) he becomes bankrupt or makes any arrangement or composition with
his creditors generally;
(c) he becomes, in the opinion of all his co-directors, incapable by reason
of mental disorder of discharging his duties as director;
(d) if his conduct is likely to be prejudicial to the sound and prudent
management of the Company, in the opinion of a majority of his co-directors and upon the recommendation of the Nomination Committee and, with regard to Directors appointed by LSEG, with LSEG's consent (not to be unreasonably withheld or delayed);
(e) he resigns his office by notice to the Company and such resignation
has taken effect in accordance with its terms;
(f) upon the occurrence of any circumstance requiring the office of that
director to be vacated that is provided for under his letter of appointment or service contract with the Company;
(g) he shall for more than six consecutive months have been absent
without permission of the directors from meetings of directors held during that period and his alternate director (if any) shall not during such period have attended any such meetings instead of him, and the directors resolve that his office be vacated; or
(h) he is removed from office by notice addressed to him at his last-known
address and signed by all his co-directors.
2.16 Resignation. Any Director may resign at any time by giving written notice to the Member. The resignation of any Director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
2.17 Removal of Directors. Subject to the terms of the Relationship Agreement, all
Directors or any lesser number may be removed, with or without cause, at any time by the Member.
2.18 Power to Bind Company. No Director (acting in his capacity as such) shall have any authority to bind the Company to any third party with respect to any matter except pursuant to a resolution expressly authorizing such action which resolution is duly adopted by the Board by the affirmative vote required for such matter pursuant to the terms of this Agreement.
2.19 Liability of Directors. No Director shall be (a) personally liable for the debts,
obligations or liabilities of the Company, including any such debts, obligations or liabilities arising under a judgment, decree or order of a court; (b) obligated to cure any deficit in any capital account; (c) required to return all or any portion of any capital contribution; or (d) required to lend any funds to the Company.
2.20 Competitively Sensitive Information.
(a) If a majority of the Public Directors determine in good faith that, in
order to prevent a breach of applicable competition law or regulation, a director appointed by or otherwise connected to a particular shareholder of the Parent Company (or that director's alternate) should not have access to competitively sensitive information concerning a particular Eligible Institution, the relevant shareholder director shall not be entitled to receive such competitively sensitive information, attend any part of a meeting at which such competitively sensitive information is discussed, or participate in discussions or vote on any resolution at such a meeting (or a meeting of any committee of the board of directors) relating to such competitively sensitive information, unless a majority of the Public Directors agree otherwise
(b) The Public Directors may only make a determination on a case by case
basis and (i) on their own initiative, provided that they have consulted the Company’s legal advisers in advance of such determination and taken their views into account; or (ii) if, following receipt by the Company of a written request from any Eligible Institution that a particular shareholder Director should not have access to certain competitively sensitive information concerning such Eligible Institution, a majority of the Public Directors determine, having obtained such legal advice as they consider appropriate, that such request is proportionate and not vexatious.
(c) Any restriction imposed pursuant to these articles shall be without
prejudice to any rights of consent under the LSEG Consent Matters and Minority Protection Reserved Matters, or any of LSEG’s rights in connection with the Push Matters as those terms are defined in the Relationship Agreement.
2.21 Records of Proceedings.
(a) The Directors shall cause minutes to be made in books kept for the
purpose (i) of all appointments of officers made by the Directors; and (ii) of all proceedings of general meetings of the Company, of the holders of any class of shares in the Company, and of the Directors, and of committees of Directors, including the names of the Directors present at each such meeting.
(b) The Company shall keep records comprising copies of all resolutions
of members passed otherwise than at general meetings and of details provided to the Company of decisions taken by a sole member.
(c) The Directors shall cause records to be made in books kept for the
purpose of all Directors' written resolutions.
(d) All such records must be kept for at least 10 years (and in a readily
accessible format for the first 2 years) from the date of the meeting or resolution or decision (as appropriate).
2.22 Committees.
(a) The Board may, by resolution passed by a vote of a majority of the
Board, designate one or more committees, each committee to consist of one or more of the Directors and other persons designated by the Board to serve thereon, subject to any
requirements relating to the establishment, composition and operation of such committees pursuant to applicable law, including the CEA and CFTC Regulations and as set out in the Relationship Agreement. The Board may designate one or more persons as alternate members of any committee, who may replace any absent member at any meeting of such committee. Any such committee, to the extent provided in the resolution of the Board passed as aforesaid, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation. Unless otherwise specified in the resolution of the Board designating a committee or the terms of reference of the committee , at all meetings of such committee a majority of the total number of members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings. Unless the Board otherwise provides, each committee designated by the Board may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board conducts its business pursuant to this Agreement.
(b) Vacancies. Any vacancy on any committee shall be filled by a decision
of the full Board.
(c) This clause 2.22 is subject to the Relationship Agreement.
2.23 Officers.
(a) Appointment of Officers. The Board may at any time and from time to
time appoint such officers of the Company (each, an "Officer") as the Board deems necessary
or desirable, and such Officers shall serve at the pleasure of the Board. At the discretion of the Board, the Company may also have other Officers appointed in accordance with the provisions of this Section 2.23(a). The Board at any time and from time to time may authorize any Officer of the Company to appoint one or more Officers. Subject to the provisions of applicable law and the Relationship Agreement, any number of offices may be held by the same person.
(b) Term of Office; Removal; Resignation. Unless otherwise provided in
an Officer's instrument of appointment, such Officer shall hold office until his or her successor is elected or appointed and qualified or until his or her earlier resignation or removal. Any officer may be removed, with or without cause, by the Board or by such other officer, if any, upon whom such power of removal may be conferred by the Board. Any officer may resign at any time by giving written notice to the Company. Any resignation shall take effect at the time of the receipt of that notice or at any later time specified in that notice. Unless otherwise specified in such notice, the acceptance of the resignation shall not be necessary to make it effective.
(c) Vacancies. Any vacancy in any office because of death, resignation,
removal, disqualification or other cause shall be filled by the Board or by an Officer authorized by the Board to appoint a person to hold such office.
(d) Powers and Duties. Each Officer shall have such powers and duties in
the management of the Company as shall be stated in the resolution of the Board or other instrument of such Officer’s appointment which is not inconsistent with this Operating
Agreement, the Relationship Agreement or applicable law and, to the extent not so stated, as generally pertain to their respective offices, subject to the overall control of the Board
2.24 Liability and Indemnification.
(a) Neither the Board (nor any individual Director), the committees, nor
any officer of the Company, shall be liable, responsible, or accountable, in damages or otherwise, to the Company for any act performed by such Person within the scope of the authority conferred on the Person by this Agreement, except for fraud, negligence, intentional misconduct, or an intentional breach of this Agreement or any employment agreement.
(b) The Board (and any individual Director), the committees, and each
officer of the Company shall he indemnified against any losses, judgments, liabilities, expenses and amounts paid in settlement of any claims sustained by such Person in connection with any action or inaction taken in good faith and believed by such Person to be in the best interest of the Company, and further provided that such action or inaction does not constitute fraud, negligence, intentional misconduct or intentional breach of this Agreement or any employment agreement. Company funds shall be advanced to such Person for legal expenses and other costs incurred by such Person as a result of any legal action for which indemnification by the Company is claimed by such Person if: (i) the legal action relates to the performance of duties or services on behalf of the Company and (ii) such Person undertakes to repay the advanced funds to the Company in cases in which it is found by any court of competent jurisdiction not to be entitled to indemnification pursuant to the provisions of this Agreement or the Act. Any indemnity under this Section 2.13(b) shall be paid from, and only to the extent of, the Company's property.
2.25 Required Member Consent. The following actions shall require the consent of
the Member:
(i) any material change to the Company's business;
(ii) the issuance of any securities by the Company;
(iii) the consummation of any transaction involving the sale of all or substantially
all of the Company's assets or securities, whether by merger or otherwise, and the conversion of the Company to a corporation; and
(iv) a dissolution of the Company.
2.25 LSEG Consent. The issuance of any securities by the Company shall be subject to the consent of LSEG for so long as LSEG and any member of the LSEG Group hold in aggregate a Significant Interest in LCH.Clearnet Group Limited (LSEG's decision on whether to grant such consent not to be unreasonably delayed).
ARTICLE III
Financial Indemnification and Miscellaneous Matters
3.1 Fiscal Year. The Company's fiscal year for both tax and financial reporting
purposes shall be January 1 through December 31 unless otherwise fixed by resolution of the Board.
3.2 Capital Contributions and Interests. The Member has made a contribution to
the capital of the Company in exchange for a membership interest in the Company.
3.3 Additional Contributions. The Member may make such additional capital
contributions as it desires, but is not required to make any additional capital contribution to the Company.
3.4 Allocation of Profits and Losses. All items of income and loss shall be
allocated to the Member.
3.5 Distributions. Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Member.
3.6 Assignments. The Member in the Member's sole and absolute discretion may at any time assign, sell, or transfer, in whole or part, or pledge or otherwise grant a lien or other security interest in, in whole or part, its Member interest in the Company or this Agreement.
3.7 Admission of Additional Members by the Company. One or more additional
members of the Company may be admitted to the Company with the prior written consent of the Member. The decision whether to admit any such member(s) shall be in the sole and absolute discretion of the Member.
3.8 Liability of Members. The Member shall not have any liability for the
obligations or liabilities of the Company except to the extent provided in the Act. The Member shall not be liable to the Company for any action taken or omitted to be taken in good faith and with the belief that such action or omission is in, or not opposed to, the best interest of the Company, so long as such action or omission is not in violation of the provisions hereof and does not constitute fraud or wilful misconduct by such person.
3.9 Dissolution. The provisions of Section 18-80 I of the Act that apply unless the limited liability company agreement otherwise provides shall not become operative. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (a) the written consent of the Member, (b) the sale of all of the Company's assets, or (c) the entry of a decree of judicial dissolution under Section 18-802 of the Act.
3.10 Exculpation of Covered Persons. For purposes of this Agreement, "Covered Person" shall mean the Member, and each officer, director, manager, shareholder, partner, member, controlling entities, employee or agent of the Member, and each of their controlling entities and each officer, director, manager, employee or agent of the Company. No Covered Person shall be liable to the Company, any Member or any other Covered Person for any loss, damage or claim incurred by reason of any action taken or omitted to be taken by such Covered Person in good faith and with the belief that such action or omission is in, or not opposed to, the best interest of the Company, so long as such action or omission is not in
violation of the provisions hereof and does not constitute fraud, gross negligence or wilful misconduct by such Covered Person. A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any person as to matters the Covered Person believes in good faith are within such other person's professional or expert competence and who has been selected in good faith by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses or any other facts pertinent to the existence and amount of assets from which distributions to Members might properly be paid (including financial statements and information, opinions, reports or statements as to the value or amount of the assets, liabilities or any facts pertinent to the existence and amount of assets from which allocations or distributions to Members might properly be paid). The preceding sentence shall in no way limit any Person's right to rely on information to the extent provided in § 18-406 of the Act. To the extent that, at law or in equity, any Covered Person has duties (including fiduciary duties) and liabilities related thereto to the Company, any Member or to any other Covered Person, the provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of such Covered Person.
3.11 Indemnification. To the fullest extent permitted by law, the Company shall indemnify, hold harmless, defend, pay and reimburse each Covered Person from, against and for any losses, claims, damages or liabilities, including without limitation, reasonable legal fees or other expenses incurred in investigating or defending against such losses, claims, damages or liabilities, and any amounts expended in settlement of any claims (collectively, "Liabilities") to which any Covered Person may become subject (i) by reason of any act or omission or alleged act or omission (even if negligent or grossly negligent) performed or omitted to be performed on behalf of a Member, the Company or otherwise in connection with the business of the Company or its activities, (ii) by reason of the fact that such Covered Person is or was acting in connection with the business of the Company or its activities as a partner, member, stockholder, manager, director, officer, employee or agent of the Company, a Member, or their respective controlling entities, as applicable, or that he, she or it is or was serving at the request of the Company as a manager, director, officer, employee or agent of any person, or (iii) by reason of any other act or omission or alleged act or omission arising out of or in connection with the Company, its business, or its activities, to the extent not reimbursed by insurance or other coverage of such other enterprise, if (x) such Covered Person acted in good faith and in a manner believed by such person to be in, or not opposed to, the interests of the Company and, with respect to any criminal proceeding, had no reason to believe his conduct was unlawful; and (y) such Covered Person's conduct did not constitute actual fraud or wilful misconduct. The Company shall promptly reimburse (and/or advance to the extent reasonably required) each Covered Person for reasonable legal or other expenses (as incurred) of each Covered Person in connection with investigating, preparing to defend or defending any claim, lawsuit or other proceeding relating to any Liabilities for which such Covered Person may be indemnified pursuant to this Section 3.11; provided, that if it is finally judicially determined that such Covered Person is not entitled to the indemnification provided by this Section 3.11, then such Covered Person shall promptly reimburse the Company for any reimbursed or advanced expenses. The provisions of this Section 3.11 shall continue to afford protection to each Covered Person regardless of whether such Covered Person remains in the position or capacity pursuant to which such Covered Person became entitled to indemnification under this Section 3.11 and regardless of any subsequent amendment to this Agreement; provided, that no such amendment shall reduce or
restrict the extent to which these indemnification provisions apply to actions taken or omissions made prior to the date of such amendment. To the extent available on commercially reasonable terms, the Company may purchase, at its expense, insurance to cover Liabilities covered by the foregoing indemnification provisions and to otherwise cover Liabilities for any breach or alleged breach by any Covered Person of its duties in such amount and with such deductibles as the Sole Manager may determine; the failure to obtain such insurance shall not affect the right to indemnification of any Covered Person under the indemnification provisions contained herein. Nothing contained in this Section 3.11 is intended or shall be construed to obligate any Member to the Company or any Covered Person to any third party for any amount in excess of such Member's liability as set forth in this Agreement or as otherwise required by law.
3.12 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, all rights and remedies being governed by said laws.
3.13 Tax Matters. The Member is hereby designated as the "tax matters partner" of
the Company.
3.14 Amendments. This Agreement may be amended from time to time by the Member in its sole discretion.
IN WITNESS WHEREOF, the Member, intending to be legally bound hereby, has duly executed this Agreement as the date first written above.
MEMBER:
LCH.Clearnet (US), LLC
By: _______________________ Name:
