Attached files
file | filename |
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S-1 - FORM S-1 - Global Brokerage, Inc. | y86406sv1.htm |
EX-3.2 - EX-3.2 - Global Brokerage, Inc. | y86406exv3w2.htm |
EX-23.2 - EX-23.2 - Global Brokerage, Inc. | y86406exv23w2.htm |
EX-16.1 - EX-16.1 - Global Brokerage, Inc. | y86406exv16w1.htm |
EX-23.1 - EX-23.1 - Global Brokerage, Inc. | y86406exv23w1.htm |
EX-23.6 - EX-23.6 - Global Brokerage, Inc. | y86406exv23w6.htm |
EX-23.7 - EX-23.7 - Global Brokerage, Inc. | y86406exv23w7.htm |
EX-23.4 - EX-23.4 - Global Brokerage, Inc. | y86406exv23w4.htm |
EX-23.3 - EX-23.3 - Global Brokerage, Inc. | y86406exv23w3.htm |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FXCM INC.
The present name of the corporation is FXCM Inc. (the Corporation). The Corporation
was incorporated under the name FXCM Inc. by the filing of its original certificate of
incorporation (the Original Certificate of Incorporation) with the Secretary of State of
the State of Delaware on August 10, 2010. This Amended and Restated Certificate of Incorporation
of the Corporation, which amends, restates and integrates the provisions of the Original
Certificate of Incorporation, was duly adopted in accordance with the provisions of Sections 242
and 245 of the General Corporation Law of the State of Delaware and by the written consent of the
stockholders in accordance with Section 228 of the General Corporation Law of the State of
Delaware. The Original Certificate of Incorporation of the Corporation is hereby amended and
restated to read in its entirety as follows:
ARTICLE I
Section 1.1. Name. The name of the Corporation is FXCM Inc. (the
Corporation).
ARTICLE II
Section 2.1. Address. The registered office of the Corporation in the State of
Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801; and the name of the
Corporations registered agent at such address is The Corporation Trust Company.
ARTICLE III
Section 3.1. Purpose. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General Corporation Law of the State
of Delaware (the DGCL).
ARTICLE IV
Section 4.1. Capitalization. The total number of shares of all classes of stock that
the Corporation is authorized to issue is 3,301,000,000 shares, consisting of (i) 300,000,000
shares of Preferred Stock, par value $0.01 per share (Preferred Stock), (ii)
3,000,000,000 shares of Class A Common Stock, par value $0.01 per share (Class A Common
Stock), and (iii) 1,000,000 shares of Class B Common Stock, par value $0.01 per share
(Class B Common Stock and, together with the Class A Common Stock, the Common
Stock). The number of authorized shares of any of the Class A Common Stock, Class B Common
Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock
of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of
the DGCL (or any successor provision thereto), and no vote of the holders of any of the Class A
Common Stock, Class B Common Stock or Preferred Stock voting separately as a class shall be
required therefor.
Section 4.2. Preferred Stock.
(A) The Board of Directors of the Corporation (the Board) is hereby expressly
authorized, by resolution or resolutions, at any time and from time to time, to provide, out of the
unissued shares of Preferred Stock, for one or more series of Preferred Stock and, with respect to
each such series, to fix the number of shares constituting such series and the designation of such
series, the voting powers (if any) of the shares of such series, and the powers, preferences and
relative, participating, optional or other special rights, if any, and any qualifications,
limitations or restrictions thereof, of the shares of such series and to cause to be filed with the
Secretary of State of the State of Delaware a certificate of designation with respect thereto. The
powers, preferences and relative, participating, optional and other special rights of each series
of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ
from those of any and all other series at any time outstanding.
(B) Except as otherwise required by law, holders of a series of Preferred Stock, as such,
shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by this
Amended and Restated Certificate of Incorporation (including any certificate of designations
relating to such series).
Section 4.3. Common Stock.
(A) Voting Rights.
(1) Each holder of Class A Common Stock, as such, shall be entitled to one vote for
each share of Class A Common Stock held of record by such holder on all matters on which
stockholders generally are entitled to vote; provided, however, that to the fullest extent
permitted by law, holders of Class A Common Stock, as such, shall have no voting power with
respect to, and shall not be entitled to vote on, any amendment to this Amended and Restated
Certificate of Incorporation (including any certificate of designations relating to any
series of Preferred Stock) that relates solely to the terms of one or more outstanding
series of Preferred Stock if the holders of such affected series are entitled, either
separately or together with the holders of one or more other such series, to vote thereon
pursuant to this Amended and Restated Certificate of Incorporation (including any
certificate of designations relating to any series of Preferred Stock) or pursuant to the
DGCL.
(2) Each holder of Class B Common Stock, as such, shall be entitled, without regard to
the number of shares of Class B Common Stock (or fraction thereof) held by such holder, to a
number of votes that is equal to the product of (x) the total number of Holdings Units (as
defined in the Exchange Agreement dated on or about the date hereof as amended from time to
time (the Exchange Agreement), by and among the Corporation, FXCM Holdings, LLC
and the holders of Holdings Units from time to time party thereto), held of record by such
holder multiplied by (y) the Exchange Rate (as defined in the Exchange Agreement)
(on all matters on which stockholders generally are
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entitled to vote; provided, further, that, to the fullest extent permitted by law,
holders of Class B Common Stock, as such, shall have no voting power with respect to, and
shall not be entitled to vote on, any amendment to this Amended and Restated Certificate of
Incorporation (including any certificate of designations relating to any series of Preferred
Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock
if the holders of such affected series are entitled, either separately or together with the
holders of one or more other such series, to vote thereon pursuant to this Amended and
Restated Certificate of Incorporation (including any certificate of designations relating to
any series of Preferred Stock) or pursuant to the DGCL.
(3) Except as otherwise required in this Amended and Restated Certificate of
Incorporation or by applicable law, the holders of Common Stock shall vote together as a
single class on all matters (or, if any holders of Preferred Stock are entitled to vote
together with the holders of Common Stock, as a single class with such holders of Preferred
Stock).
(B) Dividends and Distributions. Subject to applicable law and the rights, if any, of
the holders of any outstanding series of Preferred Stock or any class or series of stock having a
preference over or the right to participate with the Class A Common Stock with respect to the
payment of dividends and other distributions in cash, stock of any corporation or property of the
Corporation, such dividends and other distributions may be declared and paid on the Class A Common
Stock out of the assets of the Corporation that are by law available therefor at such times and in
such amounts as the Board in its discretion shall determine. Dividends and other distributions
shall not be declared or paid on the Class B Common Stock.
(C) Liquidation, Dissolution or Winding Up. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the Corporation, after payment
or provision for payment of the debts and other liabilities of the Corporation and of the
preferential and other amounts, if any, to which the holders of Preferred Stock shall be entitled,
the holders of all outstanding shares of Class A Common Stock shall be entitled to receive the
remaining assets of the Corporation available for distribution ratably in proportion to the number
of shares held by each such stockholder. The holders of shares of Class B Common Stock, as such,
shall not be entitled to receive any assets of the Corporation in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the Corporation.
(D) Retirement of Class B Common Stock. In the event that any outstanding share of
Class B Common Stock shall cease to be held by a holder of a Holdings Unit, such share shall
automatically and without further action on the part of the Corporation or any holder of Class B
Common Stock be transferred to the Corporation and thereupon shall be retired.
ARTICLE V
Section 5.1. By-Laws. In furtherance and not in limitation of the powers conferred by
the DGCL, the Board is expressly authorized to make, amend, alter, change, add to or repeal the
by-laws of the Corporation without the assent or vote of the stockholders in any manner not
inconsistent with the laws of the State of Delaware or this Amended and Restated Certificate of
Incorporation. Notwithstanding anything to the contrary contained in this Amended
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and Restated Certificate of Incorporation, the affirmative vote of the holders of at least 80%
of the voting power of all the then outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall be required for
the stockholders to make, amend, alter, change, add to or repeal any provision of the by-laws of
the Corporation.
ARTICLE VI
Section 6.1. Board of Directors.
(A) The business and affairs of the Corporation shall be managed by or under the direction of
the Board, with the exact number of directors to be determined from time to time by resolution
adopted by affirmative vote of a majority of the Board.
(B) Whenever the holders of any one or more series of Preferred Stock issued by the
Corporation shall have the right, voting separately as a series or separately as a class with one
or more such other series, to elect directors at an annual or special meeting of stockholders, the
election, term of office, removal and other features of such directorships shall be governed by the
terms of this Amended and Restated Certificate of Incorporation (including any certificate of
designations relating to any series of Preferred Stock) applicable thereto. Notwithstanding
Section 6.1(A), the number of directors that may be elected by the holders of any such series of
Preferred Stock shall be in addition to the number fixed pursuant to Section 6.1(A) hereof.
(C) Directors of the Corporation need not be elected by written ballot unless the by-laws of
the Corporation shall so provide.
ARTICLE VII
Section 7.1. Meetings of Stockholders. Any action required or permitted to be taken
by the holders of stock of the Corporation must be effected at a duly called annual or special
meeting of such holders and may not be effected by any consent in writing by such holders unless
such action is recommended by all directors of the Corporation then in office; provided, however,
that any action required or permitted to be taken by the holders of Class B Common Stock, voting
separately as a class, or, to the extent expressly permitted by the certificate of designation
relating to one or more series of Preferred Stock, by the holders of such series of Preferred
Stock, voting separately as a series or separately as a class with one or more other such series,
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 shares
of the relevant class or series 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 to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or to an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of stockholders are
recorded. Except as otherwise required by law and subject to the rights of the holders of any
series of Preferred Stock, special meetings of the stockholders of the Corporation may be called
only by or at the direction of the Board, the Chairman of the Board or the Chief Executive Officer
of the Corporation.
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ARTICLE VIII
Section 8.1. Limited Liability of Directors. No director of the Corporation will have
any personal liability to the Corporation or its stockholders for monetary damages for any breach
of fiduciary duty as a director, except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL as the same exists or hereafter may be amended. Neither
the amendment nor the repeal of this Article VIII shall eliminate or reduce the effect thereof in
respect of any state of facts existing or act or omission occurring, or any cause of action, suit
or claim that, but for this Article VIII, would accrue or arise, prior to such amendment or repeal.
ARTICLE IX
Section 9.1. Severability. If any provision or provisions of this Amended and
Restated Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as
applied to any circumstance for any reason whatsoever, the validity, legality and enforceability of
such provisions in any other circumstance and of the remaining provisions of this Amended and
Restated Certificate of Incorporation (including, without limitation, each portion of any paragraph
of this Amended and Restated Certificate of Incorporation containing any such provision held to be
invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby.
ARTICLE X
Section 10.1. Forum. Unless the Corporation consents in writing to the selection of
an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and
exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation,
(ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer,
employee or agent of the Corporation to the Corporation or the Corporations stockholders, (iii)
any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action
asserting a claim governed by the internal affairs doctrine, in each such case subject to said
Court of Chancery having personal jurisdiction over the indispensable parties named as defendants
therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital
stock of the corporation shall be deemed to have notice of and consented to the provisions of this
Article X.
* * *
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of
Incorporation to be signed by , its
this day of 2010.
FXCM INC. |
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By: | ||||
Name: | ||||
Title: | ||||
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