EXHIBIT 3.2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MARKETAXESS HOLDINGS INC.
(Pursuant to Section 228, 242 and 245 of the
General Corporation Law of the State of Delaware)
MarketAxess Holdings Inc. (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "General Corporation Law"),
DOES HEREBY CERTIFY:
FIRST: That the Corporation was originally incorporated in
Delaware under the name Market Axess Inc., and the date of its filing of its
original Certificate of Incorporation with the Secretary of State of the State
of Delaware was April 11, 2000. The Certificate of Incorporation has previously
been amended and restated on June 19, 2000, August 17, 2000, September 8, 2000,
January 31, 2001, June 28, 2001, April 4, 2002 and April __, 2004.
SECOND: That the Board of Directors of the Corporation duly
adopted resolutions proposing to amend and restate the Seventh Amended and
Restated Certificate of Incorporation of the Corporation, as amended, and that
thereafter, pursuant to such resolutions of the Board of Directors of the
Corporation, a consent of stockholders in lieu of meeting was 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 would have been present and voted.
THIRD: That said amendment was duly adopted in accordance with
the provisions of Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware.
FOURTH: The Certificate of Incorporation of the Corporation
shall be amended and restated in its entirety as follows:
ARTICLE I
NAME
The name of the Corporation is MarketAxess Holdings Inc.
ARTICLE II
REGISTERED OFFICE
The registered office of the Corporation is to be located at
2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle,
Delaware 19808. The name of the Corporation's registered agent at that address
is Corporation Service Company.
ARTICLE III
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.
ARTICLE IV
CAPITAL STOCK
A. Classes of Stock. The Corporation is authorized to issue three
(3) classes of stock to be designated, respectively, "Common Stock," "Nonvoting
Common Stock" and "Preferred Stock." The total number of shares of capital stock
which the Corporation is authorized to issue is 125,000,000 shares, of which
110,000,000 shares shall be Common Stock, 10,000,000 shares shall be Nonvoting
Common Stock and 5,000,000 shares shall be Preferred Stock. Shares of Common
Stock and Nonvoting Common Stock are sometimes collectively referred to herein
as "Common Shares." All Common Shares shall have a par value of $0.003 per share
and shares of Preferred Stock shall have a par value of $0.001 per share. The
consideration for the issuance of the shares shall be paid to or received by the
Corporation in full before their issuance and shall not be less than the par
value per share. The number of authorized shares of Common 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 of the stock
of the Corporation entitled to vote, irrespective of the provisions of Section
242(b)(2) of the General Corporation Law.
B. Rights, Preferences, Privileges and Restrictions of Preferred
Stock. The Board of Directors is authorized, subject to limitations prescribed
by law, by the rules of a national securities exchange or automated quotation
system of a registered national association, if applicable, and by the
provisions of this Amended and Restated Certificate of Incorporation, to provide
for the issuance from time to time in one or more series of any number of shares
of Preferred Stock, and, by filing a certificate pursuant to the General
Corporation Law (the "Preferred Stock Designation"), to establish the number of
shares to be included in each series, and to fix the designation, relative
rights, preferences, qualifications and limitations of the shares of each such
series. The authority of the Board of Directors with respect to each such series
shall include, but not be limited to, determination of the following:
1. The designation of the series, which may be by
distinguishing number, letter or title;
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2. The number of shares of the series, which number the
Board of Directors may thereafter (except where otherwise provided in the
Preferred Stock Designation) increase or decrease (but not below the number of
shares thereof then outstanding) in the manner permitted by law;
3. The voting rights, if any, of the holders of shares
of the series;
4. Whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate (or the manner, from time to time, of
determining such rate) of the series, and the preferences, if any, over any
other series (or of any other series over such series) with respect to
dividends;
5. Dates (or the manner, from time to time, of
determining such dates) at which dividends, if any, shall be payable;
6. The redemption rights and price or prices, if any,
for shares of the series;
7. The amounts payable on, and the preferences, if any,
of shares of the series in the event of any voluntary or involuntary
liquidation, dissolution, distribution of assets or winding up of the affairs of
the Corporation;
8. The terms and amount of any purchase, retirement or
sinking fund provided for the purchase or redemption of shares of the series;
9. Whether the shares of the series shall be convertible
into or exchangeable for shares of any other class or series, or any other
security, of the Corporation or any other corporation, and, if so, the
specification of such other class or series of such other security, the
conversion or exchange price or prices or rate or rates, any adjustments
thereof, the date or dates at which such shares shall be convertible or
exchangeable and all other terms and conditions upon which such conversion or
exchange may be made;
10. Whether the issuance of additional shares of
Preferred Stock shall be subject to restrictions as to issuance, or as to the
powers, preferences or other rights of any other series;
11. The right of the shares of such series to the benefit
of conditions and restrictions upon the creation of indebtedness of the
Corporation or any subsidiary of the Corporation, upon the issue of any
additional stock (including additional shares of such series or any other
series) and upon the payment of dividends or the making of other distributions
on, and the purchase, redemption or other acquisition by the Corporation or any
subsidiary of any outstanding stock of the Corporation; and
12. Such other powers, preferences and relative,
participating, optional and other special rights, and the qualifications,
limitations and restrictions thereof as the Board of Directors shall determine.
The holders of Preferred Stock shall not have any preemptive rights except to
the extent such rights shall be specifically provided for in the resolution or
resolutions providing for the issuance thereof adopted by the Board of
Directors.
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Dividends on outstanding shares of Preferred Stock shall be
paid or declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the Common Stock with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the assets available for distribution to
holders of shares of Preferred Stock of all series shall be insufficient to pay
such holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series of Preferred
Stock in accordance with the respective preferential amounts (including unpaid
cumulative dividends, if any) payable with respect thereto.
Except as may be provided by the Board of Directors in a
Preferred Stock Designation or as required by law, shares of any series of
Preferred Stock that have been redeemed or purchased by the Corporation, or, if
convertible or exchangeable, have been converted into or exchanged for shares of
stock of any other class or classes shall have the status of authorized and
unissued shares of Preferred Stock, and may be reissued as a part of the series
of which they were originally a part or may be reclassified and reissued as part
of a new series of Preferred Stock.
C. Rights, Preferences, Privileges and Restrictions of Common
Shares. Except as set forth in this Article IV(C), the Common Stock and the
Nonvoting Common Stock shall have the same rights and privileges as each other,
and shall rank equally, share ratably and be identical in all respects as to all
matters.
The rights, preferences, privileges and restrictions granted
to and imposed on the Common Shares are as follows:
1. Dividend Rights. Subject to the prior rights of
holders of all classes of stock at the time outstanding having prior rights as
to dividends, the holders of the Common Shares shall be entitled to receive,
when and as declared by the Board of Directors of the Corporation, out of any
assets of the Corporation legally available therefor, such dividends or other
distributions as may be declared from time to time by the Board of Directors of
the Corporation. When and as dividends or other distributions are declared,
whether payable in cash, in property or in shares of stock of the Corporation,
other than in shares of Common Stock or Nonvoting Common Stock, the holders of
Common Stock and the holders of Nonvoting Common Stock shall be entitled
(together with the holders of Preferred Stock to the extent provided in any
Preferred Stock Designation) to share equally, share for share, in such
dividends or other distributions. No dividends or other distributions shall be
declared or paid in shares of Common Stock or Nonvoting Common Stock or options,
warrants or rights to acquire such stock or securities convertible into or
exchangeable for shares of such stock, except dividends or other distributions
payable ratably according to the number of Common Shares held by them, in shares
of, or options, warrants or rights to acquire, or securities convertible into or
exchangeable for, Common Stock to holders of that class of stock and Nonvoting
Common Stock to holders of that class of stock.
2. Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntarily
or involuntarily, each issued and
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outstanding Common Share shall entitle the holder thereof to receive an equal
portion of the net assets of the Corporation available for distribution to the
holders of Common Shares, subject to any preferential rights of any then
outstanding shares of Preferred Stock. For purposes of this paragraph, a merger,
statutory share exchange, consolidation or similar corporate transaction
involving the Corporation (whether or not the Corporation is the surviving
entity), or the sale, transfer or lease by the Corporation of all or
substantially all its assets, shall not constitute or be deemed a liquidation,
dissolution or winding-up of the Corporation.
3. Voting Rights.
a. Except as otherwise provided in this Amended
and Restated Certificate of Incorporation or required by applicable law, the
holder of each share of Common Stock shall have the right to one vote in respect
of each such share of stock held of record by such holder on the books of the
Corporation for the election of directors and on all matters submitted to a vote
of the stockholders of the Corporation.
b. The Nonvoting Common Stock shall have no
voting rights other than such rights as may be required by law; provided that an
amendment of this Amended and Restated Certificate of Incorporation to increase
or decrease the number of authorized shares of Nonvoting Common Stock (but not
below the number of shares thereof then outstanding) may be adopted by
resolution adopted by the board of directors of the Corporation and approved by
the affirmative vote of the holders of a majority of the voting power of all
outstanding shares of Common Stock of the Corporation and all other outstanding
shares of stock of the Corporation entitled to vote thereon irrespective of the
provisions of Section 242(b)(2) of the General Corporation Law or any similar
provision hereafter enacted, with such outstanding shares of Common Stock and
other stock considered for this purpose as a single class, and no vote of the
holders of any shares of Nonvoting Common Stock, voting separately as a class,
shall be required therefor.
4. Redemption. The Common Shares are not redeemable.
5. Conversion Rights of Nonvoting Common Stock.
a. Subject to subsection (5)(c) below, each
share of Nonvoting Common Stock shall be convertible, at the option of the
holder thereof, at any time and from time to time, at the office of the
Corporation or any transfer agent for the Nonvoting Common Stock, into one (1)
fully-paid and non-assessable share of Common Stock.
b. Each conversion of shares of Common Stock
into Nonvoting Common Stock shall be effected by the surrender of the
certificate(s) evidencing the shares of Nonvoting Common Stock to be converted
(the "Converting Shares") at the principal office of the Corporation or at the
office of the transfer agent for the Nonvoting Common Stock (or such other
office or agency of the Corporation as the Corporation may designate by notice
in writing to the holders of such class of capital stock) at any time during its
usual business hours, together with written notice (a "Conversion Notice") by
the holder of such Converting Shares, (i) stating that the holder desires to
convert the Converting Shares or a specified number of such Converting Shares,
evidenced by such certificate(s) into shares of Common Stock (the
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"Converted Shares"), and (ii) giving the name(s) (with addresses) and
denominations in which the certificate(s) evidencing the Converted Shares shall
be issued, and instructions for the delivery thereof. Subject to subsubsection
(5)(c) below, upon receipt of a Conversion Notice together with the
certificate(s) evidencing the Converting Shares, the Corporation or the
Corporation's transfer agent shall be obligated to, and shall, issue and deliver
in accordance with such instructions the certificate(s) evidencing the Converted
Shares issuable upon such conversion and a certificate (which shall contain such
legends, if any, as were set forth on the surrendered certificate(s))
representing any shares which were represented by the certificate(s) surrendered
to the Corporation in connection with such conversion but which were not
Converting Shares and, therefore, were not converted. Such conversion, to the
extent permitted by law and subsection (5)(c) below, shall be deemed to have
been effected as of the close of business on the date on which such
certificate(s) shall have been surrendered and such Conversion Notice shall have
been received by the Corporation, and at such time the rights of the holder of
such Converting Shares as such holder shall cease, and the person(s) in whose
name or names any certificate(s) evidencing the Converted Shares are to be
issued upon such conversion shall be deemed to have become the holder(s) of
record of the Converted Shares. Upon the issuance of the Converted Shares in
accordance with this section (C)(5), such shares shall be deemed to be duly
authorized, validly issued, fully paid and non-assessable.
c. Notwithstanding anything to the contrary
contained herein, the number of shares of Common Stock that may be acquired by
any holder of Nonvoting Stock upon any conversion of Nonvoting Stock (or
otherwise in respect of the Nonvoting Stock) shall be limited to the extent
necessary to insure that, following such conversion (or other issuance), the
total number of shares of Common Stock then beneficially owned by such holder
and its affiliates and any other persons whose beneficial ownership of Common
Stock would be aggregated with such holder's for purposes of Section 13(d) of
the Securities Exchange Act of 1934, as amended (collectively, with respect to
each holder, the "Section 13(d) Affiliates" of such holder), does not exceed
9.99% (the "Maximum Percentage") of the total number of issued and outstanding
shares of Common Stock (including for such purpose the shares of Common Stock
issuable upon such conversion). For purposes of this subsection (C)(5)(b)(4),
beneficial ownership shall be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder. Each delivery of a Conversion Notice by a holder of
Nonvoting Common Stock will constitute a representation by such holder that it
has evaluated the limitation set forth in this paragraph and determined that
issuance of the full number of shares of Common Stock requested in such
Conversion Notice is permitted under this paragraph. Upon the written request of
any holder of Nonvoting Common Stock, the Corporation shall promptly confirm in
writing to any such holder the number of shares of Common Stock then
outstanding.
d. The Corporation shall at all times reserve
and keep available out of its authorized but unissued shares of Common Stock
solely for the purpose of issue upon conversion of shares of Nonvoting Common
Stock, such number of shares of such class as shall then be issuable upon the
conversion of all outstanding shares of Nonvoting Common Stock.
e. Shares of Nonvoting Common Stock that are
converted into shares of any other class shall not be reissued and in no event
shall shares of Common Stock be convertible into shares of Nonvoting Common
Stock.
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f. The issue of certificates evidencing shares
of Common Stock upon conversion of shares of Nonvoting Common Stock shall be
made without charge to the holders of such shares for any issue tax in respect
thereof or other cost incurred by the Corporation in connection with such
conversion; provided, however, the Corporation shall not be required to pay any
tax that may be payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than that of the holder of the
shares of Nonvoting Common Stock converted.
g. If the Corporation shall after the date
hereof in any manner subdivide (by stock split, stock dividend or otherwise) or
combine (by reverse stock split or otherwise) the outstanding shares of the
Common Stock or the Nonvoting Common Stock, the outstanding shares of the other
class of Common Shares shall be proportionately subdivided or combined, as the
case may be, and effective provision shall be made for the protection of all
conversion rights of the Common Stock and Nonvoting Common Stock hereunder. In
the event of any merger, statutory share exchange, consolidation or similar form
of corporate transaction involving the Corporation (whether or not the
Corporation is the surviving entity), the holders of Common Stock and the
holders of Nonvoting Common Stock shall be entitled to receive the same per
share consideration, if any, except that any securities received by holders of
Common Stock in consideration of such stock may have full or any other voting
rights and any securities received by holders of Nonvoting Common Stock in
consideration of such stock shall be non-voting to the same extent as the
Nonvoting Common Stock is non-voting. The Corporation shall not be a party to
any merger, consolidation or recapitalization pursuant to which any holder of
shares of Nonvoting Common Stock would be required to take (i) any voting
securities which would cause such holder to violate any law, regulation or other
requirement of any governmental body applicable to such holder, (ii) any
securities convertible into voting securities which if such conversion took
place would cause such holder to violate any law, regulation or other
requirement of any governmental body applicable to such holder, other than
securities which are specifically provided to be convertible only in the event
that such conversion may occur without any such violation, or (iii) any voting
securities which would cause such holder to beneficially own in excess of the
Maximum Percentage of any securities registered under Section 12 of the
Securities Exchange Act of 1934, as amended, in each case absent the specific
holder's consent.
ARTICLE V
DIRECTORS
A. Number. The number of directors of the Corporation shall be
such number, not less than three (3) nor more than fifteen (15) (exclusive of
directors, if any, to be elected by holders of preferred stock of the
Corporation, voting separately as a class), as shall be set forth from time to
time in the Corporation's Amended and Restated Bylaws (the "Bylaws"). Vacancies
in the Board of Directors of the Corporation, however caused, and newly created
directorships shall be filled by a vote of a majority of the directors then in
office, whether or not a quorum, and any director so chosen shall hold office
for a term expiring at the subsequent annual meeting of stockholders and when
the director's successor is elected and qualified.
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B. Written Ballot. Unless, and except to the extent that, the
by-laws of the corporation shall so require, the election of directors of the
corporation need not be by written ballot.
C. Removal of Directors. Notwithstanding any other provisions of
this Amended and Restated Certificate of Incorporation or the Bylaws, any
director or the entire Board of Directors of the Corporation may be removed, at
any time, by the affirmative vote of the holders of a majority of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) cast at a meeting of the stockholders called for that purpose.
Notwithstanding the foregoing, whenever the holders of any one or more series of
preferred stock of the Corporation shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the preceding
provisions of this ARTICLE V shall not apply with respect to the director or
directors elected by such holders of preferred stock.
ARTICLE VI
STOCKHOLDER MEETINGS
Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained in the statutes) outside the State
of Delaware at such place or places as may be designated from time to time by
the Board of Directors or in the Bylaws.
ARTICLE VII
LIMITATION OF DIRECTORS' LIABILITY
Except to the extent that the General Corporation Law
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability. If the General Corporation Law is amended after approval by the
stockholders of this ARTICLE VII to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law, as so amended. No amendment to
or repeal of this provision shall apply to or have any effect on the liability
or alleged liability of any director of the Corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment.
ARTICLE VIII
INDEMNIFICATION
The Corporation may, to the fullest extent permitted by
Section 145 of the General Corporation Law, as amended from time to time,
indemnify each person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
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proceeding, whether civil, criminal, administrative or investigative, by or in
the right of the Corporation or otherwise, by reason of the fact that he is or
was, or has agreed to become, a director or officer of the Corporation, or is or
was serving, or has agreed to serve, at the request of the Corporation, as a
director, officer, employee, agent or trustee of, or in a similar capacity with,
an affiliate of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise (including any employee benefit plan) (all
such persons being referred to hereafter as an "Indemnitee"), or by reason of
any action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom.
Indemnification may include payment by the Corporation of
expenses in defending an action or proceeding in advance of the final
disposition of such action or proceeding upon receipt of an undertaking by the
Indemnitee to repay such payment if it is ultimately determined that such person
is not entitled to indemnification under this ARTICLE VIII, which undertaking
may be accepted without reference to the financial ability of such person to
make such repayment.
The Corporation shall not indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person unless the initiation thereof was approved by the Board of Directors
of the Corporation.
The indemnification rights provided in this ARTICLE VIII (i)
shall not be deemed exclusive of any other rights to which Indemnitees may be
entitled under any law, agreement or vote of stockholders or disinterested
directors or otherwise, and (ii) shall inure to the benefit of the heirs,
executors and administrators of such persons. The Corporation may, to the extent
authorized from time to time by its Board of Directors, grant indemnification
rights to other employees or agents of the Corporation or other persons serving
the Corporation and such rights may be equivalent to, or greater or less than,
those set forth in this ARTICLE VIII.
Any repeal or modification of the foregoing provisions of this
Article VIII shall not adversely affect any right or protection hereunder of any
Indemnitee in respect of any act or omission occurring prior to the time of such
repeal or modification.
In the event the General Corporation Law is amended after the
date hereof to authorize corporate action further limiting or eliminating the
personal liability of directors or officers, then the personal liability of a
director or officer of the Corporation shall be further limited or eliminated to
the fullest extent permitted by the General Corporation Law, as so amended.
The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust 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 to
indemnify such person against such liability under the provisions of the General
Corporation Law.
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ARTICLE IX
AMENDMENT OF BYLAWS
In furtherance of and not in limitation of powers conferred by
statute, the Board of Directors of the Corporation is expressly authorized to
adopt, repeal, alter, amend and rescind the Bylaws by the affirmative vote of a
majority of the members of the Board of Directors.
ARTICLE X
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute and this
Amended and Restated Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation. Notwithstanding the
foregoing, the provisions set forth in ARTICLES V, VI, VII, VIII, IX and this
ARTICLE X may not be repealed, altered, amended or rescinded in any respect
unless the same is approved by the affirmative vote of the holders of a majority
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as a single
class) cast at a meeting of the stockholders called for that purpose (provided
that notice of such proposed repeal, alteration, amendment or rescission is
included in the notice of such meeting).
* * *
FIFTH: The foregoing amendment and restatement has been duly
adopted by the Board of Directors of the Corporation in accordance with the
applicable provisions of Section 242 and 245 of the General Corporation Law.
SIXTH: The foregoing amendment and restatement was approved by
the holders of the requisite number of shares of the Corporation in accordance
with Section 228 of the General Corporation Law.
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IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated
Certificate of Incorporation on this ____ day of ________, 2004.
MarketAxess Holdings Inc.
By
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Name:
Title: