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Federal Register / Vol. 86, No. 152 / Wednesday, August 11, 2021 / Notices
Representative and all persons eligible to attend Operating Committee meetings.
c Any action requiring a vote can be taken at a meeting only if a quorum of all Voting Representatives is present. A quorum is equal to the minimum votes necessary to obtain approval under Section 4.3b, i.e., Voting Representatives reflecting 2/3rd of Operating Committee votes eligible to vote on such action and SRO Voting Representatives reflecting 50% of SRO Voting Representative votes eligible to vote on such action.
i Any Voting Representative recused from voting on a particular action i mandatorily pursuant to Section 4.10b or ii upon a Voting Representatives voluntary recusal, shall not be considered in the numerator or denominator of the calculations in paragraph c for determining whether a quorum is present.
ii A Voting Representative is considered present at a meeting only if such Voting Representative is either in physical attendance at the meeting or participating by conference telephone or other electronic means that enables each Voting Representative to hear and be heard by all others present at the meeting.
d A summary of any action sought to be resolved at a meeting shall be sent to each Voting Representative entitled to vote on such matter at least one week prior to the meeting via electronic mail, portal notification, or regular U.S. or private mail or if one week is not practicable, then with as much time as may be reasonably practicable under the circumstances;
provided, however, that this requirement to provide a summary of any action prior to a meeting may be waived by the vote of the percentage of the Committee required to vote on any particular matter, under Section 4.3
above.
e Beginning with the first quarterly meeting of the Operating Committee following the Operative Date, the Chair of the Operating Committee shall be elected for a one-year term from the constituent SRO
Voting Representatives and an election for the Chair shall be held every year. Subject to the requirements of Section 4.3 hereof, the Chair shall have the authority to enter into contracts on behalf of the Company and otherwise bind the Company, but only as directed by the Operating Committee. The Chair shall designate a Person to act as Secretary to record the minutes of each meeting. The location of meetings shall be in a location capable of holding the number of attendees of such meetings, or such other locations as may from time to time be determined by the Operating Committee.
i To elect a Chair, the Operating Committee will elicit nominations for those individuals to be considered for Chair.
ii In the event that no nominated Person is elected by an affirmative vote of the Operating Committee pursuant to Section 4.3, the Persons with the lowest number of votes will be eliminated from consideration.
The Operating Committee will repeat this process until a Person is elected by affirmative vote of the Operating Committee pursuant to Section 4.3. In the event two candidates remain and neither is elected by an affirmative vote of the Operating
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Committee pursuant to Section 4.3, the Person receiving the most votes from SRO
Voting Representatives will be elected.
f Meetings may be held by conference telephone or other electronic means that enables each Voting Representative to hear and be heard by all others present at the meeting.
g Notwithstanding any other provision of this Agreement, SRO Voting Representatives, Member Observers, SEC
Staff, and other persons as deemed appropriate by a majority vote of the SRO
Voting Representatives may meet in Executive Session of the Operating Committee to discuss an item of business that falls within the topics identified in subsection i below and for which it is appropriate to exclude Non-SRO Voting Representatives. A request to create an Executive Session must be included on the written agenda for an Operating Committee meeting, along with the clearly stated rationale as to why such item to be discussed would be appropriate for Executive Session.
The creation of an Executive Session will be by a majority vote of SRO Voting Representatives with votes allocated pursuant to Section 4.3a1. The Executive Session shall only discuss the topic for which it was created and shall be disbanded upon fully discussing the topic.
i Items for discussion within an Executive Session shouldshall be limited to suchthe following topics as:
A Any topic that requires discussion of Highly Confidential Information, except for discussions regarding contract negotiations with the Processors or the Administrator;
B Vendor or Subscriber Audit Findings;
and C Litigation matters.;
D Responses to regulators with respect to inquiries, examinations, or findings; and E Other discrete matters approved by the Operating Committee.
ii The list provided in subparagraph i is not dispositive of all matters that may by their nature require discussion in an Executive Session. The mere fact that a topic is controversial or a matter of dispute does not, by itself, make a topic appropriate for Executive Session. The minutes for an Executive Session shall include the reason for including any item in Executive Session.
iii Requests to discuss a topic in Executive Session must be included on the written agenda for the Operating Committee meeting, along with the clearly stated rationale for each topic as to why such discussion is appropriate for Executive Session. Such rationale may be that the topic to be discussed falls within the list provided in subparagraph gi.
iv Any action that requires a vote in Executive Session will require a majority of the votes allocated in the manner described in Section 4.3a to SRO Voting Representatives eligible to vote on such action.
Section 4.5 Certain Transactions.
The fact that a Member or any of its Affiliates is directly or indirectly interested in or connected with any Person employed by the Company to render or perform a
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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.
Section 4.6 Company Opportunities.
a Each Member, its Affiliates, and each of their respective equity holders, controlling persons and employees may have business interests and engage in business activities in addition to those relating to the Company.
Neither the Company nor any Member shall have any rights by virtue of this Agreement in any business ventures of any such Person.
b Each Member expressly acknowledges that i the other Members are permitted to have, and may presently or in the future have, investments or other business relationships with Persons engaged in the business of the Company other than through the Company an Other Business, ii the other Members have and may develop strategic relationships with businesses that are and may be competitive or complementary with the Company, iii the other Members shall not be obligated to recommend or take any action that prefers the interests of the Company or any Member over its own interests, iv none of the other Members will be prohibited by virtue of their ownership of equity in the Company or service on the Operating Committee or body performing similar duties from pursuing and engaging in any such activities, v none of the other Members will be obligated to inform or present to the Company any such opportunity, relationship, or investment, vi such Member will not acquire or be entitled to any interest or participation in any Other Business as a result of the participation therein of any of the other Members, and vii the involvement of another Member in any Other Business in and of itself will not constitute a conflict of interest by such Person with respect to the Company or any of the Members.
Section 4.7 Subcommittees.
a Subject to Section 4.1, the Operating Committee shall have the power and right, but not the obligation, to create and disband subcommittees of the Operating Committee and to determine the duties, responsibilities, powers, and composition of such subcommittees. Subcommittee chairs will be selected by the Chair of the Operating Committee from SRO Voting Representatives or Member Observers with input from the Operating CommitteeNon-SRO Voting Representatives.
b SRO Voting Representatives, Non-SRO
Voting Representatives, Member Observers, SEC Staff, and other persons as deemed appropriate by the Operating Committee may attend meetings of any subcommittees.
c Notwithstanding paragraph b, SRO
Voting Representatives, Member Observers, and other persons as deemed appropriate by majority vote of the SRO Voting Representatives may meet in a subcommittee to discuss an item subject to the attorneyclient privilege of the Company or that is attorney work product of the Companythat exclusively affects the Members with respect to: 1 litigation matters or responses to regulators with respect to inquiries,
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