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Exhibit 3.1
EXECUTION COPY
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
OF
INSTINET GROUP LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING
AGREEMENT (the "Agreement") of Instinet Group LLC (the "Company"), dated as of
September 5, 2000, by and among Reuters C Corp. (formerly Instinet Corporation)
(the "Initial Member"), a Delaware corporation, and Reuters Holdings Switzerland
SA ("RHSSA"), a Swiss corporation, and in the event any other parties are
admitted to membership, such other parties who shall execute this Agreement by
subscribing their names as members to the signature page hereof (each a
"Member," and collectively, the "Members"). This Agreement replaces and
supersedes the Limited Liability Company Agreement of the Company (the "Original
Agreement"), dated as of June 27, 2000, in its entirety.
WITNESSETH:
WHEREAS, the Initial Member formed the Company pursuant to the
provisions of the Delaware Limited Liability Company Act, as amended (the
"Act");
WHEREAS, following the formation of the Company, RHSSA was
admitted as a Member of the Company;
NOW, THEREFORE, the Members intending to be legally bound hereby
agree as follows:
ARTICLE I
DEFINITIONS
1.01. Certain Definitions. As used herein:
"Act" shall have the meaning specified in the recitals.
"Agreement" shall have the meaning specified in the preamble.
"Assistant Secretaries" shall have the meaning specified in Section
6.01.
"Assistant Treasurers" shall have the meaning specified in Section
6.01.
"Board" shall have the meaning specified in Section 5.01(a).
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"Board Amendments" shall have the meaning specified in Section
10.06.
"Capital Account" shall have the meaning specified in Section 3.02.
"Capital Contribution" shall have the meaning specified in Section
3.01.
"Certificate" shall have the meaning specified in Section 2.01.
"Chairman" shall have the meaning specified in Section 6.01.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company" shall have the meaning specified in the preamble.
"Director" shall mean a member of the Board.
"Fiscal Year" shall have the meaning specified in Section 7.02.
"Initial Member" shall have the meaning specified in the preamble.
"Member" and "Members" shall have the meaning specified in the
preamble.
"Original Agreement" shall have the meaning specified in the
preamble.
"Person" shall mean any individual, partnership, corporation,
limited liability company, unincorporated organization or association, trust
(including the trustees thereof in their capacity as such) or other entity
(including any governmental entity), whether organized under the laws of (or, in
the case of individuals, resident in) the United States (or any political
subdivision thereof) or any foreign jurisdiction.
"President" shall have the meaning specified in Section 6.01.
"RHSSA" shall have the meaning specified in the preamble.
"Secretary" shall have the meaning specified in Section 6.01.
"Share of Common Stock" shall have the meaning specified in Section
2.06.
"Transfer" shall mean any sale, exchange, transfer, assignment,
pledge or other disposition of all or any portion of, or any interest in, Shares
of Common Stock.
"Treasurer" shall have the meaning specified in Section 6.01.
"Vice Chairman" shall have the meaning specified in Section 6.01.
"Vice Presidents" shall have the meaning specified in Section 6.01.
ARTICLE II
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ORGANIZATION
2.01. Name; Formation of the Company. The name of the Company shall
be "Instinet Group LLC." The Initial Member has executed and caused to be filed
with the Secretary of State of the State of Delaware the Certificate of
Formation (the "Certificate") of the Company on June 27, 2000.
2.02. Principal Place of Business. The Company shall have its
principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and may establish
such other offices or places of business for the Company as the Board may deem
appropriate.
2.03 Registered Agent. The address of the registered office of the
Company in the State of Delaware is Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000; and the name and
address of the registered agent of the Company in the State of Delaware upon
whom process may be served is Corporation Trust Company, Corporation Trust
Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000.
2.04. Purposes of the Company. The Company is formed for the object
and purpose of, and the nature of the business to be conducted and promoted by
the Company is, engaging in any lawful act or activity for which limited
liability companies may be formed under the Act and engaging in any and all
activities necessary or incidental to the foregoing.
2.05. Term of the Company. The existence of the Company commenced as
of the date the Certificate was filed with the Secretary of State of the State
of Delaware and shall continue until dissolution thereof in accordance with the
provisions of the Certificate or this Agreement.
2.06. Names, Addresses and Shares of Common Stock. The names and
addresses of the Members, and each Member's limited liability interests in the
Company (each such interest, a "Share of Common Stock") are as reflected on
Schedule B attached hereto and by this reference made a part hereof as if set
forth fully herein. Shares of Common Stock shall be adjusted, and Schedule B
shall be amended, in proportion to Capital Contributions.
2.07. Certificates of Shares of Common Stock. (a) Upon written
request by any Member, such Member shall be entitled to receive a certificate
signed by or in the name of the Company by the Chairman or Vice Chairman of the
Board, if any, or the President or Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Company,
certifying the number of Shares of Common Stock owned by such Member. If such
certificate is manually signed by one officer or manually countersigned by a
transfer agent or by a registrar, any other signature on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be an officer, transfer agent or registrar before such certificate is issued,
it may be issued by the Company with the same effect as if such person were such
officer, transfer agent or registrar at the date of issue.
(b) The Company may issue a new certificate of Shares of Common
Stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed,
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and the Company may require the owner of the lost, stolen or destroyed
certificate, or such owner's legal representative, to give the Company 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.
2.08. Seal. The Company may have a seal which shall have the name of
the Company inscribed thereon and shall be in such form as may be approved from
time to time by the Board. Such seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
2.09. Limitation of Liability. The liability of each Member and
employee of the Company to third parties for obligations of the Company shall be
limited to the fullest extent provided in the Act and other applicable law.
ARTICLE III
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS; ALLOCATIONS; TRANSFERS
3.01. Capital Contributions. The Initial Member and RHSSA made
contributions of capital to the Company (each contribution made to the Company
before or after the date hereof, a "Capital Contribution") in the amount shown
on Schedule B to this Agreement. Hereafter, the Members shall make additional
Capital Contributions as they deem necessary or appropriate. Schedule B shall be
amended from time to time to the extent necessary to reflect accurately such
additional Capital Contributions. Interest shall not accrue on any Capital
Contribution and no Member shall have the right to withdraw or be repaid any
Capital Contribution except as provided in this Agreement.
3.02. Capital Accounts. Capital accounts shall be maintained for the
Members in accordance with U.S. Treasury Regulation section 1.704-1(b)(2)(iv),
and shall be adjusted to take account of property revaluations in accordance
with U.S. Treasury Regulation section 1.704-1(b)(2)(iv)(f) (each such account, a
"Capital Account").
3.03. Profits and Losses. (a) All Company items of income, loss,
gain and deduction shall be allocated among the Members in proportion to their
Shares of Common Stock.
(b) Allocations of income, gain, loss, deduction and credit for U.S.
federal, state and local tax purposes shall be made in a manner consistent with
the allocation of the corresponding items of income, loss, gain and deduction as
set forth in Section 3.03(a) and as is required to comply with Section 704 of
the Code and the U.S. Treasury Regulations promulgated thereunder.
3.04. Restrictions on Transfers. No Member may Transfer all or any
portion of its Shares of Common Stock at any time without the consent of the
Board. Any Person desiring to become a substitute Member shall be required to
execute a counterpart of this Agreement, thereby evidencing such transferee's
agreement to be bound by all of the terms hereof. Upon the admission of any
substituted Member, this Agreement (including, without limitation, Schedule B)
shall be amended to reflect the membership interest of such Member and otherwise
the terms of such Person's participation in the Company.
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ARTICLE IV
MEMBERS
4.01. Annual Meetings. An annual meeting of Members shall be held
for the election of Directors at such date, time and place either within or
without the State of Delaware as may be designed by the Board from time to time.
Any other proper business may be transacted at the annual meeting.
4.02. Special Meetings. Special meetings of Members may be called at
any time by the Chairman, if any, the Vice Chairman, if any, the President or
the Board, to be held at such date, time and place either within or without the
State of Delaware as may be stated in the notice of the meeting.
4.03. Notice of Meetings. Whenever Members are required or permitted
to take any action at a meeting, a written notice of the meeting shall be given
which shall state the place, date and hour of the meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called. Unless
otherwise provided by law, the written notice of any meeting shall be given not
less than ten nor more than sixty days before the date of the meeting to each
Member entitled to vote at such meeting.
4.04. Adjournments. Any meeting of Members, annual or special, may
adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the Company may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
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 Member of
record entitled to vote at the meeting.
4.05. Quorum. At each meeting of Members, except where otherwise
provided by law or this Agreement, the holders of a majority of the Shares of
Common Stock entitled to vote at the meeting, present in person or represented
by proxy, shall constitute a quorum. In the absence of a quorum, the Members so
present may, by majority vote, adjourn the meeting from time to time in the
manner provided by Section 4.04 until a quorum shall attend. Any Shares of
Common Stock belonging on the record date for the meeting to the Company or to
another Person in which the Company, directly or indirectly, holds a majority of
the voting securities entitled to vote in the election of directors of such
other Person or which the Company otherwise has ability to control, shall
neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Company to vote
securities, including but not limited to the Shares of Common Stock, held by it
in a fiduciary capacity.
4.06. Organization. Meetings of Members shall be presided over by
the Chairman, if any, or in the absence of the Chairman by the Vice Chairman, if
any, or in the absence of the Vice Chairman by the President, or in the absence
of the President by a Vice President, or in the absence of the foregoing persons
by a chairman designated by the Board, or in the absence of such designation by
a chairman chosen at the meeting. The Secretary, or in the
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absence of the Secretary an Assistant Secretary, or in their absence the Person
appointed by the chairman of the meeting to act as secretary of the meeting,
shall act as secretary of the meeting.
4.07. Voting; Proxies. Unless otherwise provided in this Agreement,
each Member entitled to vote at any meeting of Members shall be entitled to one
vote for each Share of Common Stock held by such Member which has voting power
upon the matter in question. Each Member entitled to vote at a meeting of
Members or to express consent or dissent to any action in writing without a
meeting may authorize another person or persons to act for such Member by proxy,
but no such proxy shall be voted or acted upon after three years from its date,
unless the proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A Member may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary. Voting at meetings of Members need not be by
written ballot and need not be conducted by inspectors unless the holders of a
majority of the Shares of Common Stock entitled to vote thereon present in
person or by proxy at such meeting shall so determine. At all meetings of
Members for the election of Directors, a plurality of the votes cast shall be
sufficient to elect. With respect to other matters, unless otherwise provided by
law or by this Agreement, the affirmative vote of the holders of a majority of
the Shares of Common Stock present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall be the act of the
Members; provided that (except as otherwise required by law or by this
Agreement) the Board may require a larger vote upon any such matter.
4.08. Fixing Date for Determination of Members of Record. In order
that the Company may determine the Members entitled to notice of or to vote at
any meeting of Members or any adjournment thereof, or to express consent to any
action in writing without a meeting, or entitled 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 Shares
of Common Stock or for the purpose of any other lawful action, the Board may
fix, in advance, a record date, which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. If no record date is fixed: (a) the record date for determining
Members entitled to notice of or to vote at a meeting of Members shall be at the
close of business on the day next preceding the day on which the meeting is
held; (b) the record date for determining Members entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board
is necessary, shall be the day on which the first written consent is expressed;
and (c) the record date for determining Members for any other purpose shall be
at the close of business on the day on which the Board adopts the resolution
relating thereto. A determination of Members of record entitled to notice of or
to vote at a meeting of Members shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
4.09. List of Members Entitled to Vote. The Secretary shall prepare
and make, at least ten days before every meeting of Members, a complete list of
the Members entitled to vote at the meeting, arranged in alphabetical order, and
showing the address of each Member and the number of shares registered in the
name of each Member. Such list shall be open to the examination of any Member,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where
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the meeting is to be held, which place shall be specified, at the place where
the meeting is to be held. 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 Member who is present.
4.10. Consent of Members in Lieu of Meeting. Any action required by
law to be taken at any annual or special meeting of Members, or any action which
may be taken at any annual or special meeting of such Members, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding Shares of Common 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 of Common Stock entitled to vote thereon were present and
voted. Prompt notice of the taking of the action without a meeting by less than
unanimous written consent shall be given to those Members who have not consented
in writing.
4.11. Dealing with Members. The fact that any Member or any
affiliate of a Member is directly or indirectly interested in or connected with
any Person employed by the Company to render or perform a service, or from which
or to whom the Company may buy or sell any property, shall not prohibit the
Company from employing or dealing with such Person.
ARTICLE V
BOARD OF DIRECTORS
5.01. Management by the Board of Directors. (a) Except as otherwise
specifically limited by law or this Agreement, the business and affairs of the
Company shall be managed by or under the direction of a board of directors (the
"Board") of the Company. Except as expressly authorized in writing by the Board
or this Agreement, no Member or Director and no officer, employee, or agent of
any Member, shall directly or indirectly act as agent of the Company for any
purpose, engage in any transaction, make any commitment, enter into any contract
or incur any obligation in the name of the Company or in any other way hold
itself out as acting for or on behalf of the Company, and a Member shall be
obligated to indemnify the Company for any costs or damages incurred by the
Company as a result of the unauthorized action of such Member or any officer,
employee or agent of such Member. Any attempted action in contravention of the
preceding sentence shall be null and void ab initio, and not binding upon the
Company, unless ratified or authorized in writing by the Board.
(b) The Board shall consist of one or more members, the number
thereof to be determined from time to time by the Board. The initial Board shall
consist of seven Directors.
(c) The Board may delegate, in writing, such powers and authority to
the officers of the Company as are appropriate to facilitate the operations and
related business activities of the Company, consistent with the terms of this
Agreement. The officers of the Company shall exercise such delegated powers and
authority in a manner consistent with the policies adopted from time to time by
the Board. The Board shall retain the right to revoke any delegation granted
hereunder at any time and to reverse or overrule (if possible) any action taken
by an officer of the Company pursuant to delegated authority.
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5.02. Election; Term of Office; Removal; Resignation; Vacancies. (a)
The members of the Board shall be elected in accordance with Section 4.07.
(b) Each Director shall hold office for a three-year term, until the
third annual meeting of Members succeeding his or her election and until his or
her successor shall be elected and qualified, or until his or her earlier death,
resignation or removal as provided in this Agreement; provided that in no event
shall any Director who is not also an officer of the Company serve as a Director
for more than two consecutive three-year terms.
(c) Any Director or the entire Board may be removed, with cause, by
action of the holders of a majority of the Shares of Common Stock entitled to
vote at the time of such removal.
(d) Any Director may resign at any time. Such resignation shall be
made in writing and shall take effect at the time specified therein or, if no
time is specified therein, at the time of its receipt by the Chairman or the
Secretary. The acceptance of a resignation shall not be necessary to make it
effective, unless so expressly provided in the resignation.
(e) Vacancies and newly created directorships resulting from any
increase in the authorized number of Directors shall be filled by a majority of
the Directors then in office, although less than a quorum, or by the sole
remaining Director.
5.03. Regular Meetings. Regular meetings of the Board may be held at
such places within or without the State of Delaware and at such times as the
Board may from time to time determine, and if so determined, notice thereof need
not be given.
5.04. Special Meetings. Special meetings of the Board may be held at
such time and place within or without the State of Delaware whenever called by
the Chairman, if any, by the Vice Chairman, if any, by the President, any Vice
President or by any two Directors. Reasonable notice thereof shall be given by
the Person or Persons calling the meeting pursuant to this Section 5.04.
5.05. Participation in Meetings by Conference Telephone Permitted.
Meetings of the Board or of any committee designated by the Board may be held by
telephone or any other communications equipment by means of which all Persons
participating in the meeting can simultaneously hear each other, and a meeting
pursuant to this Section 5.05 (c) shall constitute presence in person at such
meeting.
5.06. Organization. Meetings of the Board shall be presided over by
the Chairman, if any, or in the absence of the Chairman by the Vice Chairman, if
any, or in the absence of the Vice Chairman by the President, or in their
absence by a chairman chosen at the meeting. The Secretary, or in the absence of
the Secretary an Assistant Secretary, shall act as secretary of the meeting, but
in the absence of the Secretary or any Assistant Secretary, the chairman of the
meeting may appoint any Person to act as secretary of the meeting.
5.07. Voting, Quorum, Interested Directors. (a) Each Director shall
be entitled to cast one vote.
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(b) At all meetings of the Board, the presence of one-third of the
entire Board shall constitute a quorum for the transaction of such business and,
unless otherwise required by law or by any provision of this Agreement,
decisions shall be taken by a majority vote of the Directors present at such
meeting. In case at any meeting of the Board a quorum shall not be present, the
Directors that are present at such meeting may adjourn the meeting from time to
time until a quorum shall attend.
(c) No contract or transaction between the Company and one or more
of its Directors or officers, or between the Company and any other corporation,
partnership, association or other organization in which one or more of its
Directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the Director
or officer is present at or participates in the meeting of the Board or
committee thereof which authorizes the contract or transaction, or solely
because his or her or their votes are counted for such purpose, if: (1) the
material facts as to his or her relationship or interest and as to the contract
or transaction are disclosed or are known to the Board or the committee, and the
Board or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested Directors, even though the
disinterested Directors be less than a quorum; or (2) the material facts as to
his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the Members entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by vote of the Members; or
(3) the contract or transaction is fair as to the Company as of the time it is
authorized, approved or ratified, by the Board, a committee thereof or the
Members. Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board or of a committee which
authorizes the contract or transaction.
5.08. Compensation. The Board shall have the authority to fix the
compensation of Directors.
5.09. Committees. (a) The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the Directors. 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 the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board, shall have and may exercise all the powers and authority of the Board in
the management of the business and affairs of the Company, and may authorize the
seal of the Company to be affixed to all papers which may require it; but no
such committee shall have power or authority in reference to amending the
Certificate, adopting an agreement of merger or consolidation, recommending to
the Members the sale, lease or exchange of all or substantially all of the
Company's property and assets, recommending to the Members a dissolution of the
Company or a revocation of dissolution, or removing or indemnifying Directors;
and, unless the resolution expressly so provides, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
Shares of Common Stock.
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(b) Unless the Board otherwise provides, each committee designated
by the Board may adopt, amend and repeal rules for the conduct of its business.
In the absence of a provision by the Board or a provision in the rules of such
committee to the contrary, a majority of the entire authorized number of members
of such committee shall constitute a quorum for the transaction of business, the
vote of a majority of the members present at a meeting at the time of such vote
if a quorum is then present shall be the act of such committee, and in other
respects each committee shall conduct its business in the same manner as the
Board conducts its business pursuant to this Article V.
5.10. Action Without a Meeting. Any action which may be taken by
Directors under this Agreement may be taken without a meeting if all members of
the Board or of a committee of the Board, as the case may be, consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the Board or committee.
ARTICLE VI
OFFICERS
6.01. Officers; Election. As soon as practicable after the annual
meeting of Members in each year, the Board shall elect a president (the
"President") of the Company and a secretary (the "Secretary") of the Company,
and may, if it so determines, elect from among its members a chairman (the
"Chairman") of the Board and a vice chairman (the "Vice Chairman") of the Board.
The Board may also elect one or more vice presidents (the "Vice Presidents"),
one or more assistant vice presidents, one or more assistant secretaries (the
"Assistant Secretaries"), a treasurer (the "Treasurer") and one or more
assistant treasurers (the "Assistant Treasurers") and such other officers as the
Board may deem desirable or appropriate and may give any of them such further
designations or alternate titles as it considers desirable. Any number of
offices may be held by the same Person. No officer need be a resident of the
State of Delaware or of the United States of America.
6.02. Term of Office; Removal; Resignation; Vacancies. (a) Except as
otherwise provided in the resolution of the Board electing any officer, each
officer shall hold office until the first meeting of the Board after the annual
meeting of Members next succeeding his or her election, and until his or her
successor shall be duly elected and qualified or until his or her death or until
he or she shall resign or shall have been removed in the manner hereinafter
provided. The election of an officer by the Board shall not by itself create any
contractual rights between such officer and the Company. The Board may require
any officer, agent or employee to give security for the faithful performance of
his or her duties.
(b) Any officer may be removed as such, either with or without
cause, by the Board at any time. Any such removal shall be without prejudice to
the contractual rights of such officer, if any, with the Company.
(c) Any officer may resign as such at any time. Such resignation
shall be made in writing and shall take effect at the time specified therein, or
if no time be specified, at the time of its receipt by the Board or the
Secretary. The acceptance of a resignation shall not be necessary to make it
effective, unless so expressly provided in the resignation.
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(d) Any vacancy occurring in any office of the Company by death,
resignation, removal or otherwise may be filled for the unexpired portion of the
term by the Board at any regular or special meeting.
6.03. Powers and Duties. The officers of the Company shall have such
powers and duties in the management of the Company as shall be stated in this
Agreement or in a resolution of the Board which is not inconsistent with this
Agreement and to the extent not so stated, as generally pertain to their
respective offices, subject to control of the Board. The Secretary shall have
the duty to record the proceedings of the meeting of Members, the Board and any
committees of the Board in a book kept for that purpose. The Board may require
any officer, agent or employee to give security for the faithful performance of
his or her duties.
ARTICLE VII
BOOKS, FISCAL YEAR; TAX CLASSIFICATION
7.01. Administrative Services, Books, Records and Reports. (a) The
Board shall cause to be performed all general and administrative services on
behalf of the Company in order to assure that complete and accurate books and
records of the Company are maintained at the Company's principal place of
business showing the names, addresses and interests in the Company of each of
Members of the Company, all receipts and expenditures, assets and liabilities,
profits and losses, and all other records necessary for recording the Company's
business and affairs.
(b) Any records maintained by the Company in the regular course of
its business may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs or any other information storage device; provided
that the records so kept can be converted into clearly legible form within a
reasonable time. The Company shall so convert any records so kept upon the
request of any person entitled to inspect the same.
7.02. Fiscal Year. The fiscal year of the Company for financial
reporting and for U.S. federal income tax purposes (the "Fiscal Year") shall end
on the thirty-first (31st) day of December in each year or on the date of
dissolution of the Company; provided that the first Fiscal Year of the Company
shall commence on June 27, 2000 and shall end on December 31, 2000. The Fiscal
Year of the Company may be changed at any time, and from time to time, by the
Board.
7.03. Tax Classification. The Members recognize and intend that the
Company will be classified as a partnership for U.S. federal income tax
purposes, and neither the Members nor the Company will take any position (on a
tax return or otherwise) inconsistent with such characterization.
7.04. Tax Matters Partner. For so long as the Company is subject to
U.S. federal income taxation as a partnership, the Initial Member shall be the
"tax matters partner" of the Company within the meaning of Section 6231(a)(7) of
the Code. The tax matters partner shall take such action as may be necessary to
cause each other Member to become a "notice partner" within the meaning of
Section 6223. The tax matters partner may not take any action contemplated by
Sections 6222 through 6232 of the Code in its capacity as tax matters partner
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without the consent of each of the Members. The tax matters partner shall be
responsible for notifying all Members of on-going tax proceedings, both
administrative and judicial, and will, in consultation with the other Members,
represent the Company throughout any such proceeding. Any settlement agreement
with the Internal Revenue Service will be binding upon the Members only as
provided in the Code. The tax matters partner will not bind any other Member to
any extension of the statute of limitations or to a settlement agreement without
such Member's written consent. The tax matters partner shall be responsible for
making, in consultation with the other Members, all U.S. federal income tax
elections (including under Section 751 of the Code).
ARTICLE VIII
DISTRIBUTIONS
8.01. Distributions. Distributions shall be made at such time and in
such amount as determined by the Board and shall be allocated among the Members
in proportion to their Shares of Common Stock.
8.02. Restoration of Funds. Except as otherwise provided by law, no
Member shall be required to restore to the Company any funds properly
distributed to it pursuant to Section 8.01.
8.03. Distribution Limitations. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not make a distribution
to any Member on account of its Shares of Common Stock if such distribution
would violate the Act or other applicable law or breach any contract or
agreement to which the Company is a party.
8.04. Liquidation. In the event of any sale or other disposition of
all or substantially all of the assets of the Company, the Company shall be
dissolved and the proceeds of such sale or other disposition shall be
distributed to the Members in liquidation as provided in Article IX.
ARTICLE IX
DISSOLUTION AND LIQUIDATION
9.01. Dissolution. The Company shall be dissolved on any date
specified for dissolution by the Board or following the occurrence of an
event requiring the Company to be dissolved and its affairs wound up under
the Act.
9.02. Winding up Affairs and Distribution of Assets. If an event
occurs that results in a dissolution of the Company, then the Board shall
proceed as promptly as practicable to wind up the affairs of the Company and
distribute the assets thereof or appoint one or more liquidators to do so;
provided that the assets of the Company shall be liquidated in an orderly and
businesslike manner so as not to obtain less than fair value therefor. The
appointment of any one or more liquidators may be revoked, or a successor or
additional liquidator or liquidators may be appointed, by the Board. A final
accounting shall be made by the Board or by a liquidator or liquidators so
appointed, and the accountants of the Company shall review the final accounting
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and shall render their opinion with respect thereto. As part of the winding up
of the affairs of the Company, the following steps shall be taken in the
following order:
(a) The assets of the Company shall either be sold or, with the
consent of the Members, some or all of the assets of the Company may be retained
by the Company for distribution to the Members as hereinafter provided;
(b) The assets of the Company shall be distributed as follows:
(i) First, to creditors of the Company, including any Members that
are creditors, to the extent otherwise permitted by law, in satisfaction of
debts, liabilities and obligations of the Company (whether by payment or
establishment of reserves) other than liabilities for distributions to the
Members under Section 18-601 or 18-604 of the Act;
(ii) Second, to the Members in satisfaction (whether by payment or
establishment of reserves) of liabilities of the Company under Section 18-601 or
18-604 of the Act; and
(iii) Third, to the Members in proportion to their positive
Capital Account balances.
(c) The Certificate shall be canceled upon dissolution and
completion of winding up of the Company, as provided in the Act.
ARTICLE X
MISCELLANEOUS
10.01. Notices. Any and all notices or other communications
permitted or required to be delivered or given under this Agreement shall be in
writing and signed by the party giving such notice or other communication and
shall be sent by telecopy or similar means of simultaneous transmission and
receipt or shall be delivered personally, or sent by registered or certified
mail, postage prepaid to: if to the Company, at Instinet Group LLC, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX, Attention: Xxxx Xxxxxxx; if to a Member, at the address
set forth on Schedule A, or, in each case at such other address as may be
supplied by written notice given in conformity with the terms of this Section
10.01. In the case of personal delivery, the date of personal delivery or, in
the case of telecopy or similar means of simultaneous transmission and receipt,
the date of transmission or, in the case of mailing, the date of receipt, as the
case may be, shall be the date of the delivery or giving of such notice.
10.02. Successors and Assigns. Subject to the restrictions on
transfer set forth herein, this Agreement, and each and every provision hereof,
shall be binding upon and shall inure to the benefit of the Members, their
successors, successors-in-title, executors, administrators, Directors, heirs and
assigns. Each and every successor-in-interest to the Members, whether such
successor acquires such interest by way of gift, purchase, foreclosure or by any
other method, shall hold such interest subject to all of the terms and
provisions of this Agreement.
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10.03. Title to Company Property. All property and assets owned by
the Company, whether real or personal, tangible or intangible, shall be deemed
to be owned by the Company as an entity and the Members, individually, shall not
have any ownership of such property and assets. The Company may hold any of its
assets and properties in the name of the Company or in a "street name" or in the
name of a nominee of the Company, which nominee may be one or more individuals,
corporations, partnerships, trusts or other entities.
10.4. Indemnification of Directors, Officers and Employees. (a) The
Company shall indemnify to the fullest extent permitted by law any Person made
or threatened to be made a party to any action, suit or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that
such Person or such Person's testator or intestate successor is or was a
Director, officer or employee of the Company or serves or served at the request
of the Company as a director, officer or employee of any other enterprise;
provided that this provision shall not eliminate or limit the liability of a
Person for (1) any breach of the duty of loyalty to the Company or to the
Members, (2) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, or (3) any transaction from which such
Person derived an improper personal benefit.
(b) For purposes of Section 10.04(a), the term "Company" shall
include any predecessor of the Company and any constituent enterprise (including
any constituent of a constituent) absorbed by the Company in a consolidation or
merger; the term "enterprise" shall include any corporation, partnership, joint
venture, trust or employee benefit plan; service "at the request of the Company"
shall include service as a Director, officer or employee of the Company which
imposes duties on, or involves services by, such Director, officer of employee
with respect to an employee benefit plan, its participants or beneficiaries; any
excise taxes imposed assessed on a Person with respect to an employee benefit
plan shall be deemed to be indemnifiable expenses; and action by a Person with
respect to an employee benefit plan which such Person reasonably believes to be
in the interest of the participants and beneficiaries of such plan shall be
deemed to be action not opposed to the best interests of the Company.
(c) The foregoing indemnification provisions shall not preclude any
other rights to which the Persons indemnified hereunder may be entitled under
any applicable statute, agreement, decision of the Board or otherwise, nor shall
the foregoing preclude the Company from purchasing and maintaining insurance on
behalf of any indemnified Person against liability which may be asserted against
or incurred by such Person in such capacity, whether or not the Company would
have the power to indemnify such Person against such liability under the
provisions of this Section 10.04. Expenses incurred in connection with any
proceeding may be advanced by the Company prior to final disposition of such
proceeding upon receipt of an undertaking by or on behalf of the indemnified
Person to repay such amount if it shall be determined ultimately that the
indemnified Person is not entitled to be indemnified under or pursuant to this
Section 10.04.
10.05. Headings, etc. The headings in this Agreement are inserted
for convenience of reference only and shall not affect the interpretation of
this Agreement. Wherever from the context it appears appropriate, each term
stated in either the singular or the plural shall include the singular and the
plural.
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10.06. Amendments. This Agreement may be amended by the Board (the
"Board Amendments"); provided that the Members entitled to vote, in accordance
with the provisions of Article IV, may (i) make any additional, modifying or
substitute amendments to any Board Amendment and (ii) amend any provisions of
this Agreement whether or not such provisions were originally adopted by action
of the Members.
10.07. GOVERNING LAW; SEVERABILITY OF PROVISIONS. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE. IF ANY PROVISION OF THIS AGREEMENT SHALL BE HELD TO
BE INVALID, THE REMAINDER OF THIS AGREEMENT SHALL NOT BE AFFECTED THEREBY.
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IN WITNESS WHEREOF, the undersigned Members have executed this
Amended and Restated Limited Liability Company Operating Agreement of Instinet
Group LLC as of the day and year first above written.
REUTERS C CORP.
By: /s/ Xxxx X. Xxxxxxx
___________________________________________
Name: Xxxx X. Xxxxxxx
Title: Secretary
REUTERS HOLDINGS SWITZERLAND SA
By: /s/ Xxxx-Xxxxxx Xxxxxxxx
___________________________________________
Name: Xxxx-Xxxxxx Xxxxxxxx
Title: Director
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SCHEDULE A
NAMES AND ADDRESSES OF MEMBERS
Name Address
Reuters C Corp. 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Reuters Holdings Switzerland SA 000 Xxxxx xx Xxxxxx
0000 Xxxxxxxx-Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx
Attention: Xxx Xxxxxxxx
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SCHEDULE B
CAPITAL CONTRIBUTIONS AND SHARES OF COMMON STOCK ON SEPTEMBER 5, 2000
Name Capital Contributions Total Number of Shares of
---- --------------------- -------------------------
Common Stock
------------
Reuters C Corp. $2,813,700,000 169,268,769
Reuters Holdings $167,300,000 10,064,564
Switzerland SA
