UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 19, 2017
Virtu KCG Holdings LLC
(Exact name of registrant as specified in its charter)
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Delaware |
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000-54991 |
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38-3898306 |
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(State or other jurisdiction |
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(Commission File Number) |
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(IRS Employer |
300 Vesey Street
New York, NY 10282
(Address of principal executive offices)
(646) 682-6000
(Registrant’s telephone number, including area code)
KCG Holdings, Inc.
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Introductory Note.
This Current Report on Form 8-K is being filed in connection with the completion of the merger contemplated by that certain Agreement and Plan of Merger, dated as of April 20, 2017 (the “Merger Agreement”), by and among Virtu KCG Holdings LLC, a Delaware limited liability company, formerly known as KCG Holdings, Inc. (the “Company”), Virtu Financial, Inc., a Delaware corporation (“Virtu”), and Orchestra Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Virtu (“Merger Sub”). Pursuant to the Merger Agreement, the merger of Merger Sub with and into the Company, with the Company as the surviving entity and a wholly owned subsidiary of Virtu (the “Merger”), became effective on July 20, 2017 (the “Effective Date”). On the Effective Date, in connection with the completion of the Merger, the Company was converted from a Delaware corporation having the name “KCG Holdings, Inc.” into a Delaware limited liability company having the name “Virtu KCG Holdings LLC.”
Item 1.02 Termination of a Material Definitive Agreement.
6.875% Notes
As previously disclosed, on June 21, 2017, at the direction of the Company, the trustee for the Company’s 6.875% Senior Secured Notes due 2020 (the “6.875% Notes”) delivered a notice of redemption (the “Redemption Notice”) to the holders of the 6.875% Notes. The Redemption Notice provides for the Company’s redemption of the 6.875% Notes on July 21, 2017 (the “Redemption Date”) at the redemption price set forth in the Indenture (the “6.875% Notes Indenture”), dated as of March 13, 2015 (as amended, restated, supplemented or otherwise modified prior to the Effective Date), by and among the Company, the subsidiary guarantors party thereto and The Bank of New York Mellon, as trustee and collateral agent. The Company satisfied and discharged its obligations under the 6.875% Notes Indenture on the Effective Date by depositing with the trustee funds sufficient to pay the redemption price on the Redemption Date. Also on the Effective Date, in connection with the satisfaction and discharge of the Company’s obligations under the Indenture, the Security Agreement, dated as of March 13, 2015 (as amended, restated, supplemented or otherwise modified prior to the Effective Date), by and among the Company, the guarantors named therein and The Bank of New York Mellon, as trustee and collateral agent, was terminated.
On July 21, 2017, the Company will redeem the outstanding 6.875% Notes at a redemption price equal to 103.438% of the principal amount, plus accrued and unpaid interest.
Credit Agreement
On the Effective Date, the Credit Agreement, dated as of June 5, 2015 (as amended, restated, supplemented or otherwise modified prior to the Effective Date), by and among KCG Americas, LLC, a wholly owned broker-dealer subsidiary of the Company, as borrower, the Company, as guarantor, the lenders party thereto, BMO Harris Bank N.A., as administrative agent, Bank of America, N.A., as
syndication agent, and BMO Capital Markets and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and joint book runners, was terminated.
Item 2.01 Completion of Acquisition or Disposition of Assets.
On July 20, 2017, pursuant to the Merger Agreement, Merger Sub merged with and into the Company, with the Company as the surviving entity in the Merger. Under the terms and subject to the conditions of the Merger Agreement, at the effective time of the Merger (the “Effective Time”), holders of the Company’s Class A common stock, par value $0.01 per share (the “Company Common Stock”), became entitled to receive $20.00 in cash without interest (the “Merger Consideration”) for each share of Company Common Stock (other than certain excepted shares as described in the Merger Agreement).
In addition, under the terms and subject to the conditions of the Merger Agreement, at the Effective Time: (1) each outstanding option to purchase shares of Company Common Stock (each, a “Stock Option”) granted under the Company’s Amended and Restated Equity Plan (the “Company Stock Plan”) was cancelled and automatically converted into the right to receive an amount in cash equal to the product of (x) the number of shares of Company Common Stock subject to such Stock Option immediately prior to the Effective Time and (y) the excess, if any, of the Merger Consideration of $20.00 per share over the exercise price per share of such Stock Option, less applicable taxes required to be withheld with respect to such payment; (2) each outstanding stock appreciation right (“SAR”) granted under the Company Stock Plan was cancelled and automatically converted into the right to receive an amount in cash equal to the product of (x) the number of shares of Company Common Stock subject to such SAR immediately prior to the Effective Time and (y) the excess, if any, of the Merger Consideration of $20.00 per share over the exercise price per share of such SAR, less applicable taxes required to be withheld with respect to such payment; (3) each outstanding restricted stock unit (“RSU”) granted under the Company Stock Plan, whether vested or unvested, was cancelled and automatically converted into the right to receive an amount in cash equal to the product of (x) the number of shares of Company Common Stock subject to such RSU immediately prior to the Effective Time and (y) the Merger Consideration of $20.00 per share, less applicable taxes required to be withheld with respect to such payment and (4) each outstanding warrant to purchase shares of Company Common Stock (each, a “Warrant”) was converted into the right to receive an amount in cash equal to the product of (x) the number of shares of Company Common Stock subject to such Warrant and (y) the excess, if any, of the Merger Consideration of $20.00 per share over the then-current exercise price per share of Company Common Stock (without giving effect to any of the transactions contemplated by the merger agreement) previously subject to such Warrant, less applicable taxes required to be withheld with respect to such payment.
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which was filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on April 21, 2017 and is incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
The information set forth under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.
As a result of the Merger, the Company no longer fulfills the listing requirements of the New York Stock Exchange (the “NYSE”). On July 20, 2017, the Company notified the NYSE that the Merger had become effective and requested that the NYSE (i) suspend trading of the Company Common Stock on the NYSE after the close of trading on July 20, 2017 and (ii) file with the Securities and Exchange Commission (the
“SEC”) a notification of removal from listing on Form 25 to delist the Company Common Stock from the NYSE and deregister the Company Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). On July 20, 2017, the NYSE filed the Form 25 with the SEC.
Additionally, the Company intends to file with the SEC a certification and notice of termination on Form 15 under the Exchange Act requesting the deregistration of the Company Common Stock under Section 12(g) of the Exchange Act and the suspension of the Company’s reporting obligations under Section 15(d) of the Exchange Act as promptly as practicable.
Item 3.03 Material Modification to the Rights of Security Holders.
The information set forth in Item 2.01 above and Item 5.03 below is incorporated herein by reference into this Item 3.03.
As a result of the Merger, as of the Effective Time, each holder of a certificate formerly representing any shares of Company Common Stock or of book-entry shares of Company Common Stock no longer has any rights with respect to the shares, except for the right to receive the Merger Consideration as set forth in the Merger Agreement.
Item 5.01 Changes in Control of Registrant.
The information set forth in Item 2.01 above is incorporated herein by reference into this Item 5.01.
As a result of the Merger, the Company became a wholly owned subsidiary of Virtu. The aggregate consideration paid by Virtu in connection with the Merger in respect of the Company Common Stock was approximately $1.4 billion, without giving effect to related transaction fees and expenses. Virtu funded the Merger with a combination of equity and debt financing, consisting of proceeds from (i) the sale of 40,064,103 shares of Virtu Class A common stock (39,725,979 of which were sold on the Effective Date and 38,124 of which are expected to be sold no later than October 6, 2017, subject to the satisfaction of certain conditions) to North Island Holdings I, LP, an investment vehicle funded by GIC Private Limited, a sovereign wealth fund of Singapore, and the Public Sector Pension Investment Board, a Canadian pension investment manager, for approximately $619 million, (ii) the sale of 8,012,821 shares of Virtu Class A common stock (6,346,155 of which were sold on the Effective Date and 1,666,666 of which are expected to be sold no later than October 6, 2017, subject to the satisfaction of certain conditions) to Aranda Investments Pte. Ltd., an investment vehicle funded by Singapore-based investment company Temasek Holdings (Private) Limited, for approximately $125 million; (iii) $610 million of senior secured first lien term loans provided to a Virtu subsidiary by certain lenders and JPMorgan Chase Bank, N.A., as administrative agent, which were assumed by VFH Parent LLC (“VFH”), a subsidiary of Virtu Financial LLC (“Holdings”), under the Fourth Amended and Restated Credit Agreement, dated as of June 30, 2017 (as amended, restated, supplemented or otherwise modified prior to the Effective Date), by and among Holdings, VFH, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent and sole lead arranger and book runner, as of the Effective Date, and (iv) the issuance by another Virtu subsidiary of $500 million aggregate principal amount of 6.750% senior secured second lien notes due 2022.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Immediately following the Effective Time (1) all of the Company’s directors, which includes Charles E. Haldeman, Jr., Debra J. Chrapaty, Daniel B. Coleman, Peter R. Fisher, Rene M. Kern, James T. Milde, John C. (Hans) Morris, Alastair Rampell, Daniel F. Schmitt, Laurie M. Shahon, Colin Smith, Heather E. Tookes and Adrian Weller, were removed from office by Orchestra Borrower LLC (the “Escrow Issuer”) and replaced with Douglas A. Cifu, the director of the Escrow Issuer as of immediately prior to the Effective Time, (2) all of the Company’s officers, which includes Mr. Coleman, Steffen Parratt, Nick Ogurtsov, Phillip Allison, Ryan Primmer, John McCarthy, Michael Blum, Sean Galvin and
Greg Tusar, were removed from office by the Escrow Issuer and replaced with Mr. Cifu and Joseph Molluso, the officers of the Escrow Issuer as of immediately prior to the Effective Time, who were appointed as Chief Executive Officer and Chief Financial Officer of the Company, respectively, and (3) in connection with converting the Company from a corporation to a limited liability company, as further described below in Item 5.03, the Company will be member-managed by the Escrow Issuer. Prior to their respective appointments, each of Messrs. Cifu and Molluso advised the Company that, to the best of his knowledge, he was not currently a director of, and did not hold any position with, the Company or any of its subsidiaries.
Each of Messrs. Cifu and Molluso has further advised the Company that, to the best of his knowledge, neither he nor any of his immediate family members (1) has a familial relationship with any directors, other nominees or executive officers of the Company or any of its subsidiaries; or (2) has been involved in any transactions with the Company or any of its subsidiaries, in each case, that are required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Douglas A. Cifu, age 51, became the Company’s Chief Executive Officer in July 2017. He currently serves as the Chief Executive Officer of Virtu and previously served as Virtu Financial LLC’s President and Chief Operating Officer and has served on its board of directors since co-founding the firm in April 2008. Prior to co-founding Virtu, Mr. Cifu was a partner at the international law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, where he practiced corporate law from 1990 to 2008. Mr. Cifu also serves on the board of directors of Independent Bank Group, Inc., a regional bank holding company. Mr. Cifu completed his J.D. at Columbia Law School in 1990 and received his B.A. from Columbia University in 1987, from which he graduated magna cum laude. Mr. Cifu’s experience as a corporate attorney provides us with valuable insight regarding acquisitions, debt financings, equity financings and public markets.
Joseph Molluso, age 48, became the Company’s Chief Financial Officer and Treasurer in July 2017. He has been the Executive Vice President and Chief Financial Officer of Virtu since November 2013. Prior to joining Virtu, Mr. Molluso was a Managing Director in Investment Banking at J.P. Morgan from March 2006 to November 2013, where he provided strategic advice to financial institutions with a focus on market structure related companies. Mr. Molluso started his career as an investment banker specializing in financial services companies in 1997 at Donaldson, Lufkin & Jenrette and its successor, Credit Suisse, where he helped establish the global financial technology group. Mr. Molluso received his M.B.A. from New York University in 1997 and his B.B.A. from Pace University in 1991.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Pursuant to the Merger Agreement, as of the Effective Time, the certificate of incorporation and the bylaws of Merger Sub as in effect immediately prior to the Effective Time became the organizational documents of the Company, except that all references therein to the name, date of incorporation, registered office and registered agent were changed to refer to the name, date of formation, registered office and registered agent, respectively, of the Company. Immediately after the certificate of incorporation and the bylaws of the Company became effective, a certificate of conversion was filed to convert the Company from a corporation to a limited liability company and to change the name of the Company. After the conversion, the internal affairs of the Company will be governed only by the Limited Liability Company Act of the State of Delaware and a limited liability company operating agreement and not the General Corporation Law of the State of Delaware, the certificate of incorporation and the bylaws. The certificate of incorporation and the bylaws of the Company effective as of the Effective Time and the certificate of conversion and the limited liability company operating agreement of the Company effective immediately after the Effective Time, are filed as Exhibit 3.1, Exhibit 3.2, Exhibit 3.3 and Exhibit 3.4 of this Current Report on Form 8-K, respectively, and are incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
On July 19, 2017, the Company held a special meeting of stockholders (the “Special Meeting”) to consider and vote upon several matters in connection with the proposed Merger. A total of 64,483,909 shares of the Company’s Class A common stock, par value $0.01 (“Common Stock”), were entitled to vote as of the close of business on May 24, 2017, the record date for the Special Meeting, of which a quorum of 52,997,497 were present in person or by proxy at the Special Meeting. At this Special Meeting, holders of Common Stock were requested to vote upon: (1) the adoption of the Merger Agreement (the “merger proposal”), (2) the authorization of the Merger for purposes of Section 203 of the Delaware General Corporation Law (the “Section 203 merger authorization proposal”) and (3) the approval, on a non-binding, advisory basis, of the compensation that certain executive officers of the Company may receive in connection with the Merger pursuant to agreements or arrangements with the Company (the “compensation proposal”). The proposal to approve one or more adjournments of the Special Meeting, if necessary or appropriate, including adjournments to permit further solicitation of proxies in favor of the merger proposal, was not submitted for a vote. The following actions were taken by the Company’s stockholders with respect to each of the foregoing items presented for a vote at the Special Meeting:
Proposal 1. The Company’s stockholders approved the merger proposal. The table below sets forth the voting results.
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Proposal |
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Votes For |
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Votes Against |
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Abstentions |
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Broker Non- |
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Approval of the merger proposal |
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52,575,564 |
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66,870 |
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355,063 |
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0 |
Proposal 2. The Company’s stockholders approved the Section 203 merger authorization proposal. The table below sets forth the voting results.
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Proposal |
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Votes For |
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Votes Against |
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Abstentions |
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Broker Non- |
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Approval of the Section 203 merger authorization proposal* |
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36,759,438 |
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67,584 |
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371,918 |
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0 |
*Shares owned by Virtu and shares owned by Jefferies LLC that would be attributed to Virtu under Section 203 of the Delaware General Corporation Law were not permitted to vote on Proposal 2.
Proposal 3. The Company’s stockholders approved, on a non-binding, advisory basis, the compensation proposal. The table below sets forth the voting results.
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Proposal |
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Votes For |
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Votes Against |
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Abstentions |
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Broker Non- |
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Approval, on a non-binding, advisory basis, of the compensation proposal |
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50,788,349 |
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1,285,714 |
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923,434 |
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0 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
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Virtu KCG Holdings LLC (formerly known as KCG Holdings, Inc.) | ||
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By: |
/s/ Justin Waldie | |
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Name: |
Justin Waldie |
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Title: |
Senior Vice President, General Counsel & Secretary |
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Dated: July 20, 2017 |
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Exhibit Index
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Exhibit No. |
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Description of Exhibit |
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2.1 |
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Agreement and Plan of Merger, dated April 20, 2017, by and among Virtu Financial, Inc., Orchestra Merger Sub, Inc. and KCG Holdings, Inc. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K, filed by the Company on April 21, 2017). |
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3.1 |
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Amended & Restated Certificate of Incorporation of KCG Holdings, Inc. as of the Effective Time. |
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3.2 |
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Amended and Restated By-laws of KCG Holdings, Inc. as of the Effective Time. |
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3.3 |
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Certificate of Conversion of Virtu KCG Holdings LLC, formerly known as KCG Holdings, Inc. as of immediately after the Effective Time. |
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3.4 |
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Limited Liability Company Operating Agreement of Virtu KCG Holdings LLC, formerly known as KCG Holdings, Inc. as of immediately after the Effective Time. |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
KCG HOLDINGS, INC.
1. Name. The name of the corporation is KCG Holdings, Inc. (the “Corporation”).
2. Address; Registered Office and Agent. The address of the Corporation’s registered office is 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801; and the name of its registered agent at such address is The Corporation Trust Company.
3. Purposes. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.
4. Number of Shares. The total number of shares of stock that the Corporation shall have authority to issue is 1,000, all of which shall be shares of Common Stock with the par value of $0.01 per share.
5. Election of Directors. Unless and except to the extent that the By-laws of the Corporation (the “By-laws”) shall so require, the election of directors of the Corporation need not be by written ballot.
6. Limitation of Liability.
(a) To the fullest extent permitted under the DGCL, as amended from time to time, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
(b) Any amendment or repeal of Section 7 shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment or repeal.
7. Indemnification. The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted by law, as now or hereafter in effect, and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided, however, that, except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the board of directors of the Corporation (the “Board of Directors”). The right to indemnification conferred by this Section 7 shall include the right to be paid by the Corporation the
expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Section 7 to directors and officers of the Corporation.
The rights to indemnification and to the advancement of expenses conferred in this Section 7 shall not be exclusive of any other right which any person may have or hereafter acquire under this Amended & Restated Certificate of Incorporation (this “Certificate of Incorporation”), the By-Laws, any statute, agreement, vote of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Section 7 by the stockholders of the Corporation shall not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
8. Certificate Amendments. The Corporation reserves the right at any time, and from time to time, to amend or repeal any provision contained in this Certificate of Incorporation, and add other provisions authorized by the laws of the State of Delaware at the time in force, in the manner now or hereafter prescribed by applicable law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation (as amended) are granted subject to the rights reserved in this Article.
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
KCG HOLDINGS, INC.
(A Delaware Corporation)
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the term:
1.1 “Assistant Secretary” means an Assistant Secretary of the Corporation.
1.2 “Assistant Treasurer” means an Assistant Treasurer of the Corporation.
1.3 “Board” means the Board of Directors of the Corporation.
1.4 “By-laws” means the by-laws of the Corporation, as amended from time to time.
1.5 “Certificate of Incorporation” means the certificate of incorporation of the Corporation, as amended, supplemented or restated from time to time.
1.6 “Chairman” means the Chairman of the Board of Directors of the Corporation.
1.7 “Corporation” means KCG Holdings, Inc., a Delaware corporation.
1.8 “Directors” means directors of the Corporation.
1.9 “Entire Board” means all then authorized directors of the Corporation.
1.10 “General Corporation Law” means the General Corporation Law of the State of Delaware, as amended from time to time.
1.11 “Office of the Corporation” means the executive office of the Corporation, anything in Section 131 of the General Corporation Law to the contrary notwithstanding.
1.12 “President” means the President of the Corporation.
1.13 “Secretary” means the Secretary of the Corporation.
1.14 “Stockholders” means stockholders of the Corporation.
1.15 “Treasurer” means the Treasurer of the Corporation.
1.16 “Vice President” means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 Place of Meetings. Every meeting of Stockholders may be held at such place, within or without the State of Delaware, as may be designated by resolution of the Board from time to time. The Board may, in its sole discretion, determine that the meeting of Stockholders shall not be held at any place, but may instead be held solely by means of remote communication in accordance with Delaware law.
2.2 Annual Meeting. If required by applicable law, a meeting of Stockholders shall be held annually for the election of Directors at such date and time as may be designated by resolution of the Board from time to time. Any other business may be transacted at the annual meeting.
2.3 Special Meetings. Unless otherwise prescribed by applicable law, special meetings of Stockholders may be called at any time by the Board and may not be called by any other person or persons. Business transacted at any special meeting of Stockholders shall be limited to the purpose stated in the notice.
2.4 Fixing Record Date. For the purpose of (a) determining the Stockholders entitled (i) to notice of or to vote at any meeting of Stockholders or any adjournment thereof, (ii) unless otherwise provided in the Certificate of Incorporation, to express consent to corporate action in writing without a meeting or (iii) to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock; or (b) any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date was adopted by the Board and which record date, unless otherwise required by applicable law, shall not be (x) in the case of clause (a)(i) above, more than 60 nor less than 10 days before the date of such meeting, (y) in the case of clause (a)(ii) above, more than 10 days after the date upon which the resolution fixing the record date was adopted by the Board and (z) in the case of clause (a)(iii) or (b) above, more than 60 days prior to such action. If no such record date is fixed:
2.4.1 the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held;
2.4.2 the record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting (unless otherwise provided in the Certificate of Incorporation), when no prior action by the Board is required by applicable law, shall be the first day on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law; and when prior action by the Board is required by applicable law, the record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board adopts the resolution taking such prior action; and
2.4.3 the record date for determining Stockholders for any purpose other than those specified in Sections 2.4.1 and 2.4.2 shall be at the close of business on the day on which the Board adopts the resolution relating thereto. When a determination of Stockholders of record entitled to notice of or to vote at any meeting of Stockholders has been made as provided in this Section 2.4, such determination shall apply to any adjournment thereof unless the Board fixes a new record date for the adjourned meeting.
2.5 Notice of Meetings of Stockholders. Whenever under the provisions of applicable law, the Certificate of Incorporation or these By-laws, Stockholders are required or permitted to take any action at a meeting, notice shall be given stating the place, if any, date and hour of the meeting, the means of remote communication, if any, by which Stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by applicable law, the Certificate of Incorporation or these By-laws, notice of any meeting shall be given not less than 10 nor more than 60 days before the date of the meeting, to each Stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, with postage prepaid, directed to the Stockholder at his or her address as it appears on the records of the Corporation. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent of the Corporation that the notice required by this Section 2.5 has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. Any meeting of Stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken, and at the adjourned meeting any business may be transacted that might have been transacted at the meeting as originally called. If, however, the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Stockholder of record entitled to vote at the meeting.
2.6 Waivers of Notice. Whenever the giving of any notice to Stockholders is required by applicable law, the Certificate of Incorporation or these By-laws, a waiver thereof, given by the person entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance by a Stockholder at a meeting shall constitute a waiver of notice of such
meeting except when the Stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Stockholders need be specified in any waiver of notice unless so required by applicable law, the Certificate of Incorporation or these By-laws.
2.7 List of Stockholders. The Secretary shall prepare and make, at least 10 days before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each Stockholder and the number of shares registered in the name of each Stockholder. Such list shall be open to the examination of any Stockholder, the Stockholder’s agent, or attorney, at the Stockholder’s expense, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting, during ordinary business hours at the principal place of business of the Corporation, or on a reasonably accessible electronic network as provided by applicable law. If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Stockholder who is present. If the meeting is held solely by means of remote communication, the list shall also be open for examination as provided by applicable law. Upon the willful neglect or refusal of the Directors to produce such a list at any meeting for the election of Directors, they shall be ineligible for election to any office at such meeting. Except as provided by applicable law, the stock ledger shall be the only evidence as to who are the Stockholders entitled to examine the stock ledger, the list of Stockholders or the books of the Corporation, or to vote in person or by proxy at any meeting of Stockholders.
2.8 Quorum of Stockholders; Adjournment. Except as otherwise provided by applicable law, the Certificate of Incorporation or these By-laws, at each meeting of Stockholders, the presence in person or by proxy of the holders of a majority in voting power of all outstanding shares of stock entitled to vote at the meeting of Stockholders, shall constitute a quorum for the transaction of any business at such meeting. In the absence of a quorum, the holders of a majority in voting power of the shares of stock present in person or represented by proxy at any meeting of Stockholders, including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting to another time and place. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.
2.9 Voting; Proxies. Unless otherwise provided in the Certificate of Incorporation, every Stockholder entitled to vote at any meeting of Stockholders shall be entitled to one vote for each share of stock held by such Stockholder which has voting power upon the matter in question. At any meeting of Stockholders, all matters, except as otherwise provided by the Certificate of Incorporation, these By-laws, the rules and regulations of any stock exchange applicable to the Corporation, applicable law or
pursuant to any rules or regulations applicable to the Corporation or its securities, shall be decided by the affirmative vote of a majority in voting power of shares of stock present in person or represented by proxy and entitled to vote thereon. At all meetings of Stockholders for the election of Directors, a plurality of the votes cast shall be sufficient to elect. Each Stockholder entitled to vote at a meeting of Stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such Stockholder by proxy but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only so long as, it is coupled with an interest sufficient in law to support an irrevocable power. A Stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the proxy or by delivering a new proxy bearing a later date.
2.10 Voting Procedures and Inspectors of Election at Meetings of Stockholders. The Board, in advance of any meeting of Stockholders, may, and shall if required by applicable law, appoint one or more inspectors, who may be employees of the Corporation, to act at the meeting and make a written report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting, the person presiding at the meeting may, and shall if required by applicable law, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall (a) ascertain the number of shares outstanding and the voting power of each, (b) determine the shares represented at the meeting and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors and (e) certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of their duties. Unless otherwise provided by the Board, the date and time of the opening and the closing of the polls for each matter upon which the Stockholders will vote at a meeting shall be determined by the person presiding at the meeting and shall be announced at the meeting. No ballot, proxies or votes, or any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware (the “Court of Chancery”) upon application by a Stockholder shall determine otherwise. In determining the validity and counting of proxies and ballots cast at any meeting of Stockholders, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for office at an election may serve as an inspector at such election.
2.11 Conduct of Meetings; Organization. The Board may adopt by resolution such rules and regulations for the conduct of the meeting of Stockholders as it shall deem appropriate. At each meeting of Stockholders, the President, or in the absence of the President, the Chairman, or if there is no Chairman or if there be one and the Chairman is absent, a Vice President, and in case more than one Vice President shall be
present, that Vice President designated by the Board (or in the absence of any such designation, the most senior Vice President, based on age, present), shall preside over the meeting. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the person presiding over any meeting of Stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the presiding officer of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to Stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the person presiding over the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding officer at any meeting of Stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding officer should so determine, such person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of Stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The Secretary, or in his or her absence, one of the Assistant Secretaries, shall act as secretary of the meeting. In case none of the officers above designated to act as the person presiding over the meeting or as secretary of the meeting, respectively, shall be present, a person presiding over the meeting or a secretary of the meeting, as the case may be, shall be designated by the Board, and in case the Board has not so acted, in the case of the designation of a person to act as secretary of the meeting, designated by the person presiding over the meeting.
2.12 Order of Business. The order of business at all meetings of Stockholders shall be as determined by the person presiding over the meeting.
2.13 Written Consent of Stockholders Without a Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required by the General Corporation Law to be taken at any annual or special meeting of Stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered (by hand or by certified or registered mail, return receipt requested) to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of Stockholders are recorded. Every written consent shall bear the date of signature of each Stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to
therein unless, within 60 days of the earliest dated consent delivered in the manner required by this Section 2.13, written consents signed by a sufficient number of holders to take action are delivered to the Corporation as aforesaid. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by applicable law, be given to those Stockholders who have not consented in writing, and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation.
ARTICLE 3
DIRECTORS
3.1 General Powers. Except as otherwise provided in the Certificate of Incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board. The Board may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation or these By-laws or applicable law, as it may deem proper for the conduct of its meetings and the management of the Corporation.
3.2 Number; Qualification; Term of Office. The Board shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board. Directors need not be Stockholders. Each Director shall hold office until a successor is duly elected and qualified or until the Director’s earlier death, resignation, disqualification or removal.
3.3 Newly Created Directorships and Vacancies. Unless otherwise provided by applicable law or the Certificate of Incorporation, any newly created directorships resulting from an increase in the authorized number of Directors and vacancies occurring in the Board for any cause, may be filled by the affirmative votes of a majority of the remaining members of the Board, although less than a quorum, or by a sole remaining Director, or may be elected by a plurality of the votes cast. A Director so elected shall be elected to hold office until the expiration of the term of office of the Director whom he or she has replaced or until a successor is elected and qualified, or until the Director’s earlier death, resignation or removal.
3.4 Resignation. Any Director may resign at any time by notice given in writing or by electronic transmission to the Corporation. Such resignation shall take effect at the time therein specified, and, unless otherwise specified in such resignation, the acceptance of such resignation shall not be necessary to make it effective.
3.5 Regular Meetings. Regular meetings of the Board may be held without notice at such times and at such places within or without the State of Delaware as considered necessary or desirable by the Directors.
3.6 Special Meetings. Special meetings of the Board may be held at such times and at such places within or without the State of Delaware whenever called by the Chairman, the President or the Secretary or by any two or more Directors then serving
as Directors on at least 24 hours’ notice to each Director given by one of the means specified in Section 3.9 hereof other than by mail, or on at least three days’ notice if given by mail. Special meetings shall be called by the Chairman, President or Secretary in like manner and on like notice on the written request of any two or more of the Directors then serving as Directors.
3.7 Telephone Meetings. Directors or members of any committee designated by the Board may participate in a meeting of the Board or of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting.
3.8 Adjourned Meetings. A majority of the Directors present at any meeting of the Board, including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting to another time and place. At least 24 hours’ notice of any adjourned meeting of the Board shall be given to each Director whether or not present at the time of the adjournment, if such notice shall be given by one of the means specified in Section 3.9 hereof other than by mail, or at least three days’ notice if by mail. Any business may be transacted at an adjourned meeting that might have been transacted at the meeting as originally called.
3.9 Notice Procedure. Subject to Sections 3.6 and 3.10 hereof, whenever, under applicable law, the Certificate of Incorporation or these By-laws, notice is required to be given to any Director, such notice shall be deemed given effectively if given in person or by telephone, by mail addressed to such Director at such Director’s address as it appears on the records of the Corporation, with postage thereon prepaid, or by telecopy or, if consented to by the Director to whom notice is given, by other means of electronic transmission.
3.10 Waiver of Notice. Whenever the giving of any notice to Directors is required by applicable law, the Certificate of Incorporation or these By-laws, a waiver thereof, given by the Director entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance by a Director at a meeting shall constitute a waiver of notice of such meeting except when the Director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Directors or a committee of Directors need be specified in any waiver of notice unless so required by applicable law, the Certificate of Incorporation or these By-laws.
3.11 Organization. At each meeting of the Board, the Chairman, or in the absence of the Chairman, the President, or in the absence of the President, a chairman chosen by a majority of the Directors present, shall preside. The Secretary shall act as secretary at each meeting of the Board. In case the Secretary shall be absent from any meeting of the Board, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all Assistant
Secretaries, the person presiding at the meeting may appoint any person to act as secretary of the meeting.
3.12 Quorum of Directors. The presence in person of a majority of the Entire Board shall be necessary and sufficient to constitute a quorum for the transaction of business at any meeting of the Board.
3.13 Action by Majority Vote. Except as otherwise expressly required by applicable law, the Certificate of Incorporation or these By-laws, the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board.
3.14 Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all Directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee.
ARTICLE 4
COMMITTEES OF THE BOARD
The Board may, by resolution, designate one or more committees, each committee to consist of one or more of the Directors of the Corporation. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present at the meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may, by a unanimous vote, appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent permitted by applicable law and to the extent provided in the resolution of the Board designating such committee, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it. Unless otherwise specified in the resolution of the Board designating a committee, at all meetings of such committee, a majority of the then authorized 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 Article 3 of these By-laws.
ARTICLE 5
OFFICERS
5.1 Positions. The officers of the Corporation shall be a President, a Secretary, a Treasurer and such other officers as the Board may elect, including a Chairman, one or more Vice Presidents and one or more Assistant Secretaries and Assistant Treasurers, who shall exercise such powers and perform such duties as shall be determined from time to time by resolution of the Board. The Board may elect one or more Vice Presidents as Executive Vice Presidents and may use descriptive words or phrases to designate the standing, seniority or areas of special competence of the Vice Presidents elected or appointed by it. Any number of offices may be held by the same person unless the Certificate of Incorporation or these By-laws otherwise provide.
5.2 Election. The officers of the Corporation shall be elected by the Board at its annual meeting or at such other time or times as the Board shall determine.
5.3 Term of Office. Each officer of the Corporation shall hold office for the term for which he or she is elected and until such officer’s successor is elected and qualifies or until such officer’s earlier death, resignation or removal. Any officer may resign at any time upon written notice to the Corporation. Such resignation shall take effect at the date of receipt of such notice or at such later time as is therein specified, and, unless otherwise specified, the acceptance of such resignation shall not be necessary to make it effective. The resignation of an officer shall be without prejudice to the contract rights of the Corporation, if any. Any officer may be removed at any time, with or without cause by the Board. Any vacancy occurring in any office of the Corporation may be filled by the Board. The removal of an officer with or without cause shall be without prejudice to the officer’s contract rights, if any. The election or appointment of an officer shall not of itself create contract rights.
5.4 Fidelity Bonds. The Corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise.
5.5 Chairman. The Chairman, if one shall have been appointed, shall preside at all meetings of the Board and shall exercise such powers and perform such other duties as shall be determined from time to time by resolution of the Board.
5.6 President. The President shall have general supervision over the business of the Corporation, subject, however, to the control of the Board and of any duly authorized committee of the Board. The President shall preside at all meetings of the Stockholders and at all meetings of the Board at which the Chairman (if there be one) is not present. The President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by resolution of the Board or by these By-laws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed and, in general, the President shall perform all duties incident to the office of President of a corporation and such other duties as may from time to time be assigned to the President by resolution of the Board.
5.7 Vice Presidents. At the request of the President, or, in the President’s absence, at the request of the Board, the Vice Presidents shall (in such order as may be designated by the Board, or, in the absence of any such designation, in order of seniority based on age) perform all of the duties of the President and, in so performing, shall have all the powers of, and be subject to all restrictions upon, the President. Any Vice President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by resolution of the Board or by these By-laws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed, and each Vice President shall perform such other duties as from time to time may be assigned to such Vice President by resolution of the Board or by the President.
5.8 Secretary. The Secretary shall attend all meetings of the Board and of the Stockholders and shall record all the proceedings of the meetings of the Board and of the Stockholders in a book to be kept for that purpose, and shall perform like duties for committees of the Board, when required. The Secretary shall give, or cause to be given, notice of all special meetings of the Board and of the Stockholders and shall perform such other duties as may be prescribed by the Board or by the President, under whose supervision the Secretary shall be. The Secretary shall have custody of the corporate seal of the Corporation, and the Secretary, or an Assistant Secretary, shall have authority to affix the same on any instrument requiring it, and when so affixed, the seal may be attested by the signature of the Secretary or by the signature of such Assistant Secretary. The Board may, by resolution, give general authority to any other officer to affix the seal of the Corporation and to attest the same by such officer’s signature. The Secretary or an Assistant Secretary may also attest all instruments signed by the President or any Vice President. The Secretary shall have charge of all the books, records and papers of the Corporation relating to its organization and management, shall see that the reports, statements and other documents required by applicable law are properly kept and filed and, in general, shall perform all duties incident to the office of Secretary of a corporation and such other duties as may from time to time be assigned to the Secretary by resolution of the Board or by the President.
5.9 Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds, securities and notes of the Corporation; receive and give receipts for moneys due and payable to the Corporation from any sources whatsoever; deposit all such moneys and valuable effects in the name and to the credit of the Corporation in such depositaries as may be designated by the Board; against proper vouchers, cause such funds to be disbursed by checks or drafts on the authorized depositaries of the Corporation signed in such manner as shall be determined by the Board and be responsible for the accuracy of the amounts of all moneys so disbursed; regularly enter or cause to be entered in books or other records maintained for the purpose full and adequate account of all moneys received or paid for the account of the Corporation; have the right to require from time to time reports or statements giving such information as the Treasurer may desire with respect to any and all financial transactions of the Corporation from the officers or agents transacting the same; render to the President or the Board, whenever the President or the Board shall require the Treasurer so
to do, an account of the financial condition of the Corporation and of all financial transactions of the Corporation; disburse the funds of the Corporation as ordered by the Board; and, in general, perform all duties incident to the office of Treasurer of a corporation and such other duties as may from time to time be assigned to the Treasurer by resolution of the Board or by the President.
5.10 Assistant Secretaries and Assistant Treasurers. Assistant Secretaries and Assistant Treasurers shall perform such duties as shall be assigned to them by the Secretary or by the Treasurer, respectively, or by resolution of the Board or by the President.
ARTICLE 6
INDEMNIFICATION
6.1 Power to Indemnify in Actions, Suits or Proceedings Other than Those by or in the Right of the Corporation. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.
6.2 Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
6.3 Authorization of Indemnification. Any indemnification under this Article 6 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 6.1 or Section 6.2 of this Article 6, as the case may be. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (b) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (c) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (d) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or person sharing the authority to act on the matter on behalf of the Corporation. To the extent, however, that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.
6.4 Good Faith Defined. For purposes of any determination under Section 6.3 of this Article 6, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his or her conduct was unlawful, if such person’s action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to such person by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term “another enterprise” as used in this Section 6.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 6.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 6.1 or 6.2 of this Article 6, as the case may be.
6.5 Indemnification by Court. Notwithstanding any contrary determination in the specific case under Section 6.3 of this Article 6, and notwithstanding
the absence of any determination thereunder, any director or officer may apply to the Court of Chancery for indemnification to the extent otherwise permissible under Sections 6.1 and 6.2 of this Article 6. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standards of conduct set forth in Section 6.1 or 6.2 of this Article 6, as the case may be. Neither a contrary determination in the specific case under Section 6.3 of this Article 6 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 6.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.
6.6 Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article 6.
6.7 Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article 6 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation or any By-Law, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 6.1 and 6.2 of this Article 6 shall be made to the fullest extent permitted by law. The provisions of this Article 6 shall not be deemed to preclude the indemnification of any person who is not specified in Section 6.1 or 6.2 of this Article 6 but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL, or otherwise.
6.8 Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power or the obligation to indemnify such person against such liability under the provisions of this Article 6.
6.9 Certain Definitions. For purposes of this Article 6, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article 6 with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation of its separate existence had continued. For purposes of this Article 6, references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article 6.
6.10 Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article 6 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.
6.11 Limitation on Indemnification. Notwithstanding anything contained in this Article 6 to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 6.5 hereof), the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board.
ARTICLE 7
GENERAL PROVISIONS
7.1 Certificates Representing Shares. Unless the Board otherwise provides by resolution or resolutions that some or all of any or all classes or series of the capital stock of the Corporation shall be uncertificated shares, every holder of stock shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman, if any, or the President or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer, certifying the number of shares owned by such Stockholder in the Corporation. Any or all of the signatures upon a certificate may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon any certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such
certificate may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
7.2 Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agents and registry offices or agents at such place or places as may be determined from time to time by the Board.
7.3 Lost, Stolen or Destroyed Certificates. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.
7.4 Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method; provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to applicable law.
7.5 Seal. The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
7.6 Fiscal Year. The fiscal year of the Corporation shall be determined by resolution of the Board.
7.7 Amendments. These By-laws may be altered, amended or repealed and new By-laws may be adopted by the Board, but the Stockholders may make additional By-laws and may alter and repeal any By-laws whether adopted by them or otherwise.
Exhibit 3.3
STATE OF DELAWARE
CERTIFICATE OF CONVERSION
FROM A CORPORATION TO A
LIMITED LIABILITY COMPANY PURSUANT TO
SECTION 18-214 OF THE LIMITED LIABILITY ACT
1.) The jurisdiction where the Corporation first formed is Delaware.
2.) The jurisdiction immediately prior to filing this Certificate is Delaware.
3.) The date the corporation first formed is December 26, 2012.
4.) The name of the Corporation immediately prior to filing this Certificate is KCG Holdings, Inc.
5.) The name of the Limited Liability Company as set forth in the Certificate of Formation is Virtu KCG Holdings LLC.
IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 20 day of July, A.D. 2017.
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/s/ Justin Waldie |
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Authorized Person |
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Name: |
Justin Waldie |
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Print or Type |
Exhibit 3.4
EXECUTION VERSION
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
VIRTU KCG HOLDINGS LLC
THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT (this “Agreement”) of Virtu KCG Holdings LLC, a Delaware limited liability company (the “Company”), dated as of July 20, 2017, is adopted and entered into by Orchestra Borrower LLC, in its capacity as sole member of the Company (the “Managing Member”), pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del.C. §18-101, et seq.), as amended from time to time (the “Act”), and the terms of this Agreement.
WHEREAS, the Company was formed as a Delaware corporation having the name “Knight Holdco, Inc.” by the filing of a certificate of incorporation with the Secretary of State of the State of Delaware (the “Secretary of State”) on December 26, 2012;
WHEREAS, the Company changed its name from “Knight Holdco, Inc.” to “KCG Holdings, Inc.” by the filing of a restated certificate of incorporation with the Secretary of State on July 1, 2013 (the “Restated Certificate”);
WHEREAS, GETCO Financing Escrow LLC, a Delaware limited liability company merged with and into the Company, as evidenced by the filing of a certificate of merger with the Secretary of State on July 1, 2013;
WHEREAS, Orchestra Merger Sub, Inc., a Delaware corporation, merged with and into the Company (the “Virtu Merger”), as evidenced by the filing of a certificate of merger with the Secretary of State on July 20, 2017;
WHEREAS, the Company was converted to a Delaware limited liability company having the name “Virtu KCG Holdings LLC” (the “Conversion”) by filing (i) a certificate of conversion on July 20, 2017 and (ii) a certificate of formation with the Secretary of State on July 20, 2017 (the “Certificate of Formation”); and
WHEREAS, the Managing Member wishes to provide that the right and obligations of the Managing Member and the administration and termination of the Company shall be governed by this Agreement and the Act.
NOW, THEREFORE, the Managing Member agrees as follows:
1. Name. The name of the Company is “Virtu KCG Holdings LLC”.
2. Purpose. The Company has been formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company
is, carrying on any lawful act or activities for which limited liability companies may be organized under the Act.
3. Registered Office and Registered Agent. The registered office of the Company in the State of Delaware is 251 Little Falls Drive, Wilmington, County of New Castle, Delaware 19808 and the Company’s registered agent at such address is Corporation Service Company. The Managing Member may change the registered office and registered agent of the Company from time to time in accordance with the Act.
4. Principal Place of Business. The principal place of business shall be such place as the Managing Member from time to time may determine.
5. Members. The name and business address of the sole member of the Company is Orchestra Borrower LLC, 300 Vesey Street, New York, NY 10282.
6. Management.
(a) The Company shall be managed by the Managing Member, who shall be deemed to be a “manager” for the purposes of applying the Act and have all powers, statutory or otherwise, possessed by a manager under the laws of the State of Delaware. The Managing Member may take any and all actions (including, without limitation, executing, delivering and performing on behalf of the Company any and all contracts, agreements, certificates, undertakings or other documents or instruments) and do any and all things necessary, desirable, convenient or incidental to carry on the business and purposes of the Company.
(b) The Managing Member may appoint individuals as officers (“Officers”) of the Company, which may include such officers as the Manager determines are necessary and appropriate. No Officer need be a Member. An individual may be appointed to more than one office. The Officers of the Company shall be as set forth below:
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Douglas A. Cifu |
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Chief Executive Officer |
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Joseph Molluso |
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Chief Financial Officer & Treasurer |
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Justin Waldie |
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Senior Vice President, General Counsel & Secretary |
7. Admission of Additional or Substitute Members. Additional members and substitute members may be admitted to the Company (together with the Managing Member , “Members”) at any time with the prior approval of the Managing Member .
8. Capital Contributions. The Members shall contribute capital to the Company from time to time as the Managing Member shall require with such capital
contribution being made by the Members pro rata in accordance with their percentage interest(s).
9. Percentage Interests. The Managing Member is authorized to issue from time to time to one or more persons or entities, on behalf of the Company, equity interests of the Company, having the powers, preferences, rights, qualifications, limitations and restrictions as shall be determined by the Managing Member in its sole discretion, in exchange for contributions of cash, property, the provision of services or such other consideration as may be determined by the Managing Member in its sole discretion. Schedule I sets forth the name(s) of the Member(s) and their percentage interest(s) as of the date hereof. The Managing Member is authorized to amend this Agreement to reflect the terms of any additional equity interests in the Company and to amend Schedule I to reflect the percentage interests held by the Members.
10. Distributions. Distributions shall be made to the Members in accordance with their percentage interests at the times and in the aggregate amounts determined by the Managing Member .
11. Liability of Members and Officers. No Member, officer or any of their respective affiliates (as defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended, and used herein, “Affiliates”), shall be liable to the Company, any other Member, any other officer or their respective Affiliates for any action taken or omitted to be taken by such Member, such officer or their respective Affiliates in good faith and with the belief that such action or omission was in 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 willful misconduct. No Member, officer or any of their respective Affiliates shall be liable to the Company, any other Member, any other officer or any of their respective Affiliates for any action taken or omitted to be taken by any other Member, any other officer or their respective Affiliates, nor shall a Member or an officer (in the absence of fraud, gross negligence or willful misconduct by such Member or officer, as the case may be) be liable to the Company, any other Member or any other officer for any action or omission of any employee or agent of the Company.
12. Limited Liability of Members. Except as otherwise expressly set forth herein or in the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member.
13. Indemnification.
(a) Power to Indemnify in Actions, Suits or Proceedings Other than Those by or in the Right of the Company. The Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company) by reason of the fact that such person is or was a manager or officer of the Company, or is or was a manager or officer of the Company serving at the request of the Company as a director, manager or officer, employee or agent of another limited liability company, corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.
(b) Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Company. The Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person is or was a manager or officer of the Company, or is or was a manager or officer of the Company serving at the request of the Company as a director, manager, officer, employee or agent of another limited liability company, corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company unless and only to the extent that the Court of Chancery of the State of Delaware (the “Court of Chancery”) or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
(c) Authorization of Indemnification. Any indemnification under this Section 13 (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the manager or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 13(a) or Section 13(b), as the case may be. Such determination shall be made, with respect to a person who is a manager or officer at the time of such determination, (i) by a majority vote of the managers who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such managers designated by a majority vote of such managers, even though less than a
quorum, or (iii) if there are no such managers, or if such managers so direct, by independent legal counsel in a written opinion or (iv) by the Members. Such determination shall be made, with respect to former managers and officers, by any person or person sharing the authority to act on the matter on behalf of the Company. To the extent, however, that a present or former manager or officer of the Company has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.
(d) Good Faith Defined. For purposes of any determination under Section 13(c), a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his or her conduct was unlawful, if such person’s action is based on the records or books of account of the Company or another enterprise, or on information supplied to such person by the officers of the Company or another enterprise in the course of their duties, or on the advice of legal counsel for the Company or another enterprise or on information or records given or reports made to the Company or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or another enterprise. The term “another enterprise” as used in this Section 13(d) shall mean any other company or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Company as a manager, officer, employee or agent. The provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 13(a) or Section 13(b), as the case may be.
(e) Indemnification by Court. Notwithstanding any contrary determination in the specific case under Section 13(c), and notwithstanding the absence of any determination thereunder, any manager or officer may apply to the Court of Chancery for indemnification to the extent otherwise permissible under Section 13(a) and Section 13(b). The basis of such indemnification by a court shall be a determination by such court that indemnification of the manager or officer is proper in the circumstances because such person has met the applicable standards of conduct set forth in Section 13(a) or Section 13(b), as the case may be. Neither a contrary determination in the specific case under Section 13(e) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the manager or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 13(e) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the manager or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.
(f) Expenses Payable in Advance. Expenses incurred by a manager or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such manager or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Company as authorized in this Section 13.
(g) Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Section 13 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Formation or any agreement, contract, vote of members or disinterested managers or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Company that indemnification of the persons specified in Section 13(a) and Section 13(b) shall be made to the fullest extent permitted by law. The provisions of this Section 13 shall not be deemed to preclude the indemnification of any person who is not specified in Section 13(a) or Section 13(b) but whom the Company has the power or obligation to indemnify under the provisions of the Act, or otherwise.
(h) Insurance. The Company may purchase and maintain insurance on behalf of any person who is or was a manager or officer of the Company, or is or was a manager or officer of the Company serving at the request of the Company as a manager, officer, employee or agent of another company, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Company would have the power or the obligation to indemnify such person against such liability under the provisions of this Section 13.
(i) Certain Definitions. For purposes of this Section 13, references to “the Company” shall include any predecessor or other constituent entity of Virtu KCG Holdings LLC, including KCG Holdings, Inc., which, if its separate existence had continued, would have had power and authority to indemnify its directors, managers or officers, so that any person who is or was a director, manager or officer of such constituent entity, or is or was a director, manager or officer of such constituent entity serving at the request of such constituent entity as a director, manager, officer, employee or agent of another company, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Section 13 with respect to the resulting or surviving company as such person would have with respect to such constituent entity of its separate existence had continued. For purposes of this Section 13, references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Company” shall include any service as a director, manager, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, manager or officer with respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Section 13. For purposes of this Section 13, references to “a person who is or was a manager or officer of the Company” shall include all former directors and officers of KCG Holdings, Inc.
(j) Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 13 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a manager or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. For the avoidance of doubt, all rights, existing as of April 20, 2017, to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Virtu Merger in favor of the current or former directors, officers or employees of KCG Holdings, Inc. or any of its subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) continue in full force and effect in accordance with their terms.
(k) Limitation on Indemnification. Notwithstanding anything contained in this Section 13 to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 13(e) hereof), the Company shall not be obligated to indemnify any manager or officer (or his or her heirs, executors or personal or legal representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Managing Member.
14. Tax Treatment. The Managing Member acknowledges and agrees that the Company is a domestic entity with one owner and is intended to be classified and treated as a disregarded entity for United States federal, state and local income tax purposes effective upon the Conversion. The Company’s books of account shall be maintained on a basis consistent with such treatment and on the same basis utilized in preparing the Managing Member’s United States federal income tax returns. The Managing Member hereby agrees to take any measures necessary (or, if applicable, refrain from any action) to ensure that the Company is treated as a disregarded entity for United States federal, state and local income tax purposes.
15. Dissolution. The Company shall be dissolved and its affairs shall be wound up upon a decision made at any time by the Managing Member to dissolve the Company. In the absence of such a decision, the Company shall be dissolved and its affairs wound up upon the bankruptcy or dissolution of all of the Members or as otherwise specifically required by the Act.
16. Liquidation. Upon a dissolution pursuant to Section 15, the Company’s business and assets shall be liquidated in an orderly manner. The Managing Member shall designate a person to be the liquidator to wind up the affairs of the
Company. In performing its duties, the liquidator is authorized to sell, distribute, exchange or otherwise dispose of Company assets in accordance with the Act in any manner that the liquidator shall determine, provided that any distribution to one or more Members shall be made in accordance with Section 10.
17. Amendments. This Agreement may be amended only by a written instrument executed by the Managing Member.
18. Benefits of Agreement. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or any creditor of any Member.
19. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware.
20. Counterparts. This Agreement may be executed in one or more counterparts and all such counterparts so executed shall constitute an original agreement binding on all the parties, but together shall constitute but one instrument.
21. Entire Agreement. This Agreement constitutes the entire agreement among the Members with respect to the subject matter hereof and supersedes all prior written or oral agreements, and all contemporaneous oral agreements, in respect thereof, and shall not be amended, modified, or supplemented, nor any provision hereof waived, except in accordance with the terms of this Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the date first above written.
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ORCHESTRA BORROWER LLC | ||
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By: |
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Name: |
Justin Waldie |
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Title: |
Senior Vice President & Secretary |
[Signature Page to Operating Agreement of Virtu KCG Holdings LLC]
Schedule I
MEMBERS, PERCENTAGE INTERESTS
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Member |
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Percentage Interest |
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Orchestra Borrower LLC |
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100 |
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