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Federal Register / Vol. 86, No. 152 / Wednesday, August 11, 2021 / Notices
Section 11.3 Termination.
Each of the Members shall be furnished with a statement prepared by the independent accountants retained on behalf of the Company, which shall set forth the assets and liabilities of the Company as of the date of the final distribution of Companys assets under Section 1011.2 and the net profit or net loss for the fiscal period ending on such date. Upon compliance with the distribution plan set forth in Section 1011.2, the Members shall cease to be such, and the liquidating trustee shall execute, acknowledge, and cause to be filed a certificate of cancellation of the Company.
Upon completion of the dissolution, winding up, liquidation, and distribution of the liquidation proceeds, the Company shall terminate.
Article XII.

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EXCULPATION AND INDEMNIFICATION
Section 12.1 Exculpation.
Each Member, by and for itself, each of its Affiliates and each of its and their respective equity holders, directors, officers, controlling persons, partners, employees, successors and assigns, hereby acknowledges and agrees that it is the intent of the Company and each Member that the liability of each Member and each individual currently or formerly serving as an SRO Voting Representative or Non-SRO Voting Representative each, an Exculpated Party be limited to the maximum extent permitted by Applicable Law or as otherwise expressly provided herein. In accordance with the foregoing, the Members hereby acknowledge and agree that:
a To the maximum extent permitted by Applicable Law or as otherwise expressly provided herein, no present or former Exculpated Party or any of such Exculpated Partys Affiliates, heirs, successors, assigns, agents or representatives shall be liable to the Company or any Member for any loss suffered in connection with a breach of any fiduciary duty, errors in judgment or other acts or omissions by such Exculpated Party;
provided, however, that this provision shall not eliminate or limit the liability of such Exculpated Party for i acts or omissions which involve gross negligence, willful misconduct or a knowing violation of law, or ii as provided in Section 5.4d hereof, losses resulting from such Exculpated Partys Transaction Reports, Quotation Information or other information reported to the Processors by such Exculpated Party collectively Non-Exculpated Items. Any Exculpated Party may consult with counsel and accountants in respect of Company affairs, and provided such Person acts in good faith reliance upon the advice or opinion of such counsel or accountants, such Person shall not be liable for any loss suffered in reliance thereon.
b Notwithstanding anything to the contrary contained herein, whenever in this Agreement or any other agreement contemplated herein or otherwise, an Exculpated Party is permitted or required to take any action or to make a decision in its sole discretion or discretion or that it deems necessary, or necessary or appropriate or under a grant of similar
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authority or latitude, the Exculpated Party may, insofar as Applicable Law permits, make such decision in its sole discretion regardless of whether there is a reference to sole discretion or discretion. The Exculpated Party i shall be entitled to consider such interests and factors as it desires including its own interests, ii shall have no duty or obligation fiduciary or otherwise to give any consideration to any interest of or factors affecting the Company or the Members, and iii shall not be subject to any other or different standards imposed by this Agreement, or any other agreement contemplated hereby, under any Applicable Law or in equity.
Section 12.2 Right to Indemnification.
a Subject to the limitations and conditions provided in this Article XII and to the fullest extent permitted by Applicable Law, the Company shall indemnify each Company Indemnified Party for Losses as a result of the Company Indemnified Party being a Party to a Proceeding.
Notwithstanding the foregoing, no such indemnification shall be available in the event the Company is a claimant against the Company Indemnified Party.
b Indemnification under this Article XII
shall continue as to a Company Indemnified Party who has ceased to serve in the capacity that initially entitled such Company Indemnified Party to indemnity hereunder;
provided, however, that the Company shall not be obligated to indemnify a Company Indemnified Party for the Company Indemnified Partys Non-Exculpated Items.
c The rights granted pursuant to this Article XII shall be deemed contract rights, and no amendment, modification, or repeal of this Article XII shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings arising prior to any amendment, modification, or repeal. It is expressly acknowledged that the indemnification provided in this Article XII could involve indemnification for negligence or under theories of strict liability.
d The Company shall be the primary obligor in respect of any Company Indemnified Partys claim for indemnification, for advancement of expenses, or for providing insurance, subject to this Article XII. The obligation, if any, of any Member or its Affiliates to indemnify, to advance expenses to, or provide insurance for any Company Indemnified Party shall be secondary to the obligations of the Company under this Article XII and the Companys insurance providers shall have no right to contribution or subrogation with respect to the insurance plans of such Member or its Affiliates.
Section 12.3 Advance Payment.
Reasonable expenses incurred by a Company Indemnified Party who is a named defendant or respondent to a Proceeding shall be paid by the Company in advance of the final disposition of the Proceeding upon receipt of an undertaking by or on behalf of such Company Indemnified Party to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company.

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Section 12.4 Appearance as a Witness.
Notwithstanding any other provision of this Article XII, the Company shall pay or reimburse reasonable out-of-pocket expenses incurred by a Company Indemnified Party in connection with his appearance as a witness or other participation in a Proceeding at a time when he is not a named defendant or respondent in the Proceeding.
Section 12.5 Nonexclusivity of Rights.
The right to indemnification and the advancement and payment of expenses conferred in this Article XII shall not be exclusive of any other right which any Company Indemnified Person may have or hereafter acquire under any law common or statutory, provision of the Certificate or this Agreement or otherwise.
Article XIII.
MISCELLANEOUS
Section 13.1 Expenses.
The Company shall pay all current expenses, including any Taxes payable by the Company, whether for its own account or otherwise required by law including any costs of complying with applicable tax obligations, third-party service provider fees, and all administrative and processing expenses and fees, as well as any other amounts owing to the Processors under the Processor Services Agreements, to the Administrator under the Administrative Services Agreement, or to the Processors, Administrator, or FINRA under Exhibit D to this Agreement, before any allocations may be made to the Members. Appropriate reserves, as unanimously determined by the Members, may be charged to the Capital Account of the Members for i contingent liabilities, if any, as of the date any such contingent liabilities become known to the Operating Committee, or ii amounts needed to pay the Companys operating expenses, including administrative and processing expenses and fees, before any allocations are made to the Member. Each Member shall bear the cost of implementation of any technical enhancements to the System made at its request and solely for its use, subject to reapportionment should any other Member subsequently make use of the enhancement, or the development thereof.
Section 13.2 Entire Agreement.
Upon the Operative Date, this Agreement supersedes the CQ Plan, the CTA Plan, and the UTP Plan and all other prior agreements among the Members with respect to the subject matter hereof. This instrument contains the entire agreement with respect to such subject matter.
Section 13.3 Notices and Addresses.
Unless otherwise specified herein, all notices, consents, approvals, reports, designations, requests, waivers, elections, and other communications collectively, Notices authorized or required to be given pursuant to this Agreement shall be in writing and may be delivered by certified or registered mail, postage prepaid, by hand, by any private overnight courier service, or notification through the Companys web
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