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EXHIBIT 3.6
State of Delaware PAGE 1
OFFICE OF THE SECRETARY OF STATE
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I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HERE BY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED
CERTIFICATE OF "AMERITRADE HOLDING CORPORATION", FILED IN THIS OFFICE ON THE
FIRST DAY OF JULY, A.D. 1999, AT 3:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ EDWARD J. FREEL
[SEAL] -------------------------------------
2658986 8100 Edward J. Freel, Secretary of State
AUTHENTICATION: 9844495
991271059
DATE: 07-02-99
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RESTATED CERTIFICATE OF INCORPORATION
OF
AMERITRADE HOLDING CORPORATION
It is hereby certified that:
1. The present name of the corporation (hereinafter called the
"Corporation") is Ameritrade Holding Corporation. The date of filing of the
original Certificate of Incorporation of the Corporation with the Secretary of
State of Delaware is September 25, 1996.
2. This Restated Certificate of Incorporation restates and amends
the Certificate of Incorporation of the Corporation by amending said
Certificate of Incorporation of the Corporation in its entirety as set forth in
Exhibit A attached hereto and made a part hereof.
3. The Restated Certificate of Incorporation herein certified was
duly adopted by a majority vote of the holders of the Class A common Stock of
the Corporation and by the written consent of the holders of the Class B Common
Stock of the Corporation in accordance with the applicable provisions of
Sections 212, 228, 242 and 245 of the General Corporation Law of Delaware, as
amended.
IN WITNESS WHEREOF, said Ameritrade Holding Corporation has caused
this certificate to be signed by J. Peter Ricketts, its Secretary, this 1st day
of July, 1999.
AMERITRADE HOLDING CORPORATION
By: /s/ J. PETER RICKETTS
Name: J. Peter Ricketts
Its: Secretary
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
AMERITRADE HOLDING CORPORATION
FIRST: The name of the corporation is Ameritrade Holding Corporation
(the "Corporation").
SECOND: The registered office of the Corporation in the State of
Delaware is located at 1209 Orange Street in the City of Wilmington, County of
New Castle. The name of its registered agent at such address is The Corporation
Trust Company.
THIRD: 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 "Act").
FOURTH: The total number of shares of capital stock which the
Corporation has authority to issue is 291,000,000 shares, consisting of:
(l) 3,000,000 shares of Preferred Stock, par value $1.00 per
share (the "Preferred Stock");
(2) 270,000,000 shares of Class A Common Stock, par value $.01
per share (the "Class A Stock"); and
(3) 18,000,000 shares of Class B Common Stork, par value $.01
per share (the "Class B Stock").
The Class A Stock and the Class B Stock are hereafter collectively
referred to as the "Common Stock."
A. PREFERRED STOCK
Authority is hereby expressly granted to the Board of Directors to
authorize the issuance of one or more series of Preferred Stock and with respect
to each such series to fix by resolution or resolutions providing for the
issuance of such series the voting powers, full or limited, if any, of the
shares of such series and the designations, preferences and relative,
participating, optional or other special rights and the qualifications,
limitations or restrictions thereof.
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B. COMMON STOCK
Except as otherwise provided in this Section B or as otherwise required
by applicable law, all shares of Class A Stock and Class B Stock shall be
identical in all respects and shall entitle the holders thereof to the same
rights and privileges, subject to the same qualifications, limitations and
restrictions.
1. Voting Rights.
(a) General. Except as otherwise provided in this Section B or as
otherwise required by applicable law, the holders of Class A Stock and the
holders of Class B Stock shall vote as a single class and shall be entitled to
one vote per share on all matters to be voted on by the stockholders of the
Corporation.
(b) Election of Directors. The number of directors shall be
determined in the manner provided in the Bylaws of the Corporation. The Class B
Stock shall be entitled to elect a majority of the directors and the Class A
Stock shall be entitled to elect the remaining directors.
(c) Removal. Only the holders of Class A Stock shall be entitled to
vote on the removal, with or without cause, of any director elected by the
holders of Class A Stock. Only the holders of Class B Stock shall be entitled
to vote on the removal, with or without cause, of any director elected by the
holders of Class B Stock.
(d) Vacancies. Any vacancy in the office of a director created by the
death, resignation or removal of a director elected by the holders of Class A
Stock shall be filled only by a vote of the holders of Class A Stock. Any
vacancy in the office of a director created by the death, resignation or removal
of a director elected by the holders of Class B Stock shall be filled only by a
vote of the holders of Class B Stock. Notwithstanding anything in this Section
(d) to the contrary, any vacancy in the office of a director may be filled by
the vote of the majority of the directors (or director) elected by the same
class of stock that elected the director whose death, resignation or removal
created the vacancy, or in the event that there are no such directors, by the
vote of the majority of the other directors or by the sole remaining director,
regardless, in each instance, of any quorum requirements set forth in the Bylaws
of the Corporation. Any director elected by the stockholders or by some or all
of the directors to fill a vacancy shall serve until the next annual meeting of
stockholders and until his or her successor has been elected and has qualified.
Any vacancy in the office of a director created by the increase in the number of
directors may be filled by election at the next annual or special meeting of
stockholders in accordance with Section 1 (b) or by the vote of all the
directors prior to such annual or special meeting of stockholders, in which case
the directors shall designate which class of stock shall be deemed to have
elected the director filling such vacancy.
(e) One Class Outstanding. Notwithstanding anything in this Section 1
to the contrary, the holders of Class A Stock shall be entitled to elect all of
the directors and shall have exclusive
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voting power on all matters at any time when no Class B Stock is issued and
outstanding, and the holders of Class B Stock shall be entitled to elect all
of the directors and shall have exclusive voting power on all matters at any
time when no Class A Stock is issued and outstanding, subject in each case to
the provisions of any Preferred Stock.
2. Dividends. As and when dividends are declared or paid on the
Common Stock, whether in cash, property or securities of the Corporation, the
holders of Class A Stock and the holders of Class B Stock shall be entitled to
participate in such dividends ratably on a per share basis; provided that if
dividends are declared that are payable in shares of Class A Stock or Class B
Stock, dividends shall be declared that are payable at the same rate on both
classes of stock and any dividends payable in shares of Class A Stock shall be
payable to holders of that class of stock and any dividends payable in shares
of Class B Stock shall be payable to holders of that class of stock.
3. Conversion.
(a) Conversion of Class A Stock. The Class A Stock is not
convertible.
(b) Conversion of Class B Stock.
(i) Each share of Class B Stock may be converted into one share
of Class A Stock at any time at the option of and without cost to the
holder thereof. Any such conversion may be effected by any holder of
Class B Stock surrendering such holder's certificate or certificates
representing the Class B Stock to be converted, duly endorsed, at the
principal office of the Corporation or any transfer agent for the
Class B Stock during normal business hours, together with a written
notice to the Corporation at such office that such holder elects to
convert all or a specified number of shares of Class B Stock and stating
the name or names in which such holder desires the certificate or
certificates representing such Class A Stock to be issued. Promptly
thereafter, the Corporation shall issue and deliver to such holder, or
such holder's nominee or nominees, a certificate or certificates
representing the number of shares of Class A Stock to which such holder
shall be entitled. Such conversion shall be deemed to have been made at
the close of business on the date of such surrender and receipt of such
notice and the person or persons entitled to receive the Class A Stock
issuable upon such conversion shall be treated for all purposes as the
holder or holders of record of such Class A Stock as of the close of
business on that date.
(ii) Each share of Class B Stock shall automatically convert
into one share of Class A Stock if the number of issued and outstanding
shares of Common Stock held by the Control Group is less than twenty
percent (20%) of the aggregate number of issued and outstanding shares
of Common Stock.
(iii) Each share of Class B Stock shall automatically convert
into one share of Class A Stock in the event such share is sold or
transferred to any person other than to a member of the Control Group.
If any share of Class B Stock is sold or transferred to a
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member of the Control Group who subsequently ceases to be a member of the
Control Group, each such share shall automatically convert into one share of
Class A Stock.
(iv) For purposes of this Section 3, "Control Group" shall mean
J. Joe Ricketts, Marlene M. Ricketts, the lineal descendants of J. Joe
Ricketts and Marlene M. Ricketts and their spouses, and any trust or
other person or entity that holds Common Stock for the benefit for any
of the foregoing.
4. Liquidation. Subject to the provisions of any Preferred Stock,
the holders of Class A Stock and the holders of Class B Stock shall be entitled
to participate ratably on a per share basis in all distriubtions to the holders
of Common Stock in any liquidation, dissolution or winding up of the
Corporation.
5. Subdivision. Reclassification and Combination. The Corporation
shall not subdivide, reclassify or combine any class of Common Stock without at
the same time making a proportionate, subdivision, reclassification or
combination of each other class of Common Stock.
FIFTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Act or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 279 of Title 8 of the Act, order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be, to be summoned
in such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
SIXTH. A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Act for payment of
unlawful dividends or unlawful stock repurchases or redemptions, or (iv) for
any transaction from which the director derived an improper personal benefit.
SEVENTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the Bylaws of the Corporation.
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EIGHTH: The Corporation reserves the right to amend, alter, change,
add to or repeal any provision contained in this Certificate of Incorporation
in the manner now or hereafter prescribed by statute, and all rights herein
conferred are granted subject to this reservation.
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