REGISTRATION RIGHTS AGREEMENT OF FXCM INC. Dated as of ___________
Table of Contents
| Page | ||||
| ARTICLE I DEFINITIONS AND OTHER MATTERS |
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| Section 1.1 | Definitions. | 1 | ||
| Section 1.2 | Definitions Generally | 4 | ||
| ARTICLE II REGISTRATION RIGHTS |
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| Section 2.1 | Exchange Registration | 5 | ||
| Section 2.2 | Demand Registration | 5 | ||
| Section 2.3 | Incidental Registration | 6 | ||
| Section 2.4 | Holdback Agreements | 8 | ||
| Section 2.5 | Registration Procedures | 9 | ||
| Section 2.6 | Indemnification by the Company | 12 | ||
| Section 2.7 | Indemnification by Registering Covered Persons | 13 | ||
| Section 2.8 | Conduct of Indemnification Proceedings | 14 | ||
| Section 2.9 | Contribution | 14 | ||
| Section 2.10 | Participation in Public Offering | 15 | ||
| Section 2.11 | Other Indemnification | 15 | ||
| Section 2.12 | Parties in Interest | 15 | ||
| Section 2.13 | Acknowledgement Regarding the Company | 15 | ||
| Section 2.14 | Mergers, Recapitalizations, Exchanges or Other Transactions Affecting Registrable Securities |
15 | ||
| ARTICLE III MISCELLANEOUS |
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| Section 3.1 | Term of the Agreement; Termination of Certain Provisions | 16 | ||
| Section 3.2 | Assignment; Successors | 16 | ||
| Section 3.3 | Governing Law | 16 | ||
| Section 3.4 | Severability | 16 | ||
| Section 3.5 | Entire Agreement | 17 | ||
| Section 3.6 | Successors and Assigns; Certain Transferees Bound Hereby | 17 | ||
| Section 3.7 | Counterparts | 17 | ||
| Section 3.8 | Remedies | 17 | ||
| Section 3.9 | Notices | 17 | ||
| Section 3.10 | Governing Law | 18 | ||
| Section 3.11 | Specific Performance | 18 | ||
| Section 3.12 | Descriptive Headings | 18 | ||
| Appendix A | Covered Person Questionnaire |
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This REGISTRATION RIGHTS AGREEMENT (including Appendix A hereto, as such Appendix A may be
amended from time to time pursuant to the provisions hereof, this “Agreement”), is made and
entered into as of _____________, by and among FXCM Inc., a Delaware corporation (the
“Company”), and the Covered Persons (defined below) from time to time party hereto.
WHEREAS, the Covered Persons are holders of Holdings Units (defined below), which, subject to
certain restrictions and requirements, are exchangeable at the option of the holder thereof for
shares of the Company’s Class A common stock, par value $0.01 per share (the “Class A Common
Stock”); and
WHEREAS, the Company desires to provide the Covered Persons with registration rights with
respect to Class A Common Stock underlying their Holdings Units and certain other shares of Class A
Common Stock they may otherwise hold from time to time.
NOW, THEREFORE, in consideration of the premises and of the mutual agreements, covenants and
provisions herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND OTHER MATTERS
DEFINITIONS AND OTHER MATTERS
Section 1.1 Definitions. Capitalized terms used in this Agreement without other definition shall, unless expressly
stated otherwise, have the meanings specified in this Section 1.1:
“Beneficial Owner” has the meaning set forth in Rule 13d-3 under the Exchange Act.
“Board” means the Board of Directors of the Company.
“Class A Common Stock” has the meaning ascribed to such term in the Recitals.
“Company” has the meaning ascribed to such term in the preamble.
“Covered Holdings Units” means, with respect to a Covered Person, such Covered
Person’s Holdings Units.
“Covered Person” means those persons, other than the Company, who shall from time to
time be parties to this Agreement in accordance with the terms hereof (including Permitted
Transferees).
“Demand Committee” shall mean (a) Dror (Drew) Niv, for so long as he shall be an
officer of the Company and a holder of Holdings Units or shares of Class A Common Stock, (b) ▇▇▇▇▇
▇▇▇▇▇▇, for so long as he shall be an officer of the Company and a holder of Holdings Units or
shares of Class A Common Stock and (c) a representative of Long Ridge Equity Partners who shall
initially be ▇▇▇▇▇ ▇▇▇▇▇, for so long as entities affiliated with Long Ridge Equity Partners are,
assuming the exchange of all then-outstanding Holdings Units owned by
persons other than the Company, holders of at least 5% (on a fully diluted basis) of the
then-outstanding shares of Class A Common Stock. At such time as none of Drew Niv, ▇▇▇▇▇ ▇▇▇▇▇▇
and a representative of Long Ridge Equity Partners shall continue to be a member of the Demand
Committee pursuant to the immediately preceding sentence the Demand Committee shall consist of a
representative of all Covered Persons that would, assuming the exchange of all then-outstanding
Holdings Units owned by persons other than the Company, hold at least 5% (on a fully diluted basis)
of the then-outstanding shares of Class A Common Stock (which committee may, for the avoidance of
doubt, include Drew Niv or ▇▇▇▇▇ ▇▇▇▇▇▇). If at any time none of Drew Niv, ▇▇▇▇▇ ▇▇▇▇▇▇ and a
representative of Long Ridge Equity Partners shall continue to be a member of the Demand Committee
pursuant to the first sentence of this paragraph and there shall not be any Covered Person that
would, assuming the exchange of all then-outstanding Holdings Units owned by persons other than the
Company, hold at least 5% (on a fully diluted basis) of the then-outstanding shares of Class A
Common Stock, there shall cease to be a Demand Committee and Sections 2.2 and 2.3 hereof shall have
no further force or effect.
“Demand Notice” has the meaning ascribed to such term in Section 2.2(a).
“Demand Registration” has the meaning ascribed to such term in Section 2.2(a).
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
“Exchange Agreement” means the Exchange Agreement, dated as of or about the date
hereof among the Company, Holdings and holders of Holdings Units from time to time party thereto,
as amended from time to time.
“Exchange Registration” has the meaning ascribed to such term in Section 2.1(a).
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Follow-on Holdback Period” has the meaning ascribed to such term in Section 2.4(a).
“Governmental Authority” means any national, local or foreign (including U.S. federal,
state or local) or supranational (including European Union) governmental, judicial, administrative
or regulatory (including self-regulatory) agency, commission, department, board, bureau, entity or
authority of competent jurisdiction.
“Holdback Extension” has the meaning ascribed to such term in Section 2.4(a).
“Holdings” means FXCM Holdings, LLC, a Delaware limited liability company.
“Holdings LLC Agreement” means the Third Amended and Restated Limited Liability
Company Agreement of Holdings dated as of or about the date hereof, as it may be amended,
supplemented or restated from time to time.
“Holdings Unit” has the meaning given to such term in the Exchange Agreement.
“Incidental Registration” has the meaning ascribed to such term in Section 2.3(a).
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“Indemnified Parties” has the meaning ascribed to such term in Section 2.6.
“IPO Holdback Period” has the meaning ascribed to such term in Section 2.4(a).
“Other Registration Rights” means any securities of the Company proposed to be
included in such registration by the holders of registration rights granted other than pursuant to
this Agreement.
“Permitted Transferee” means any transferee of a Holdings Unit after the date hereof
the transfer of which was permitted by the Holdings LLC Agreement.
“Public Offering” means an underwritten public offering pursuant to an effective
registration statement under the Securities Act, other than pursuant to a registration statement on
Form S-4 or Form S-8 or any similar or successor form.
“Registering Covered Person” has the meaning ascribed to such term in Section 2.5(a).
“Registrable Securities” means shares of Class A Common Stock that may be delivered in
exchange for Holdings Units and other shares of Class A Common Stock otherwise held by Covered
Persons from time to time. For purposes of this Agreement, Registrable Securities shall cease to be
Registrable Securities when such Registrable Securities (i) are Transferred in a Public Sale, (ii)
are eligible to be sold by the Covered Person owning such Registrable Securities (including
Registrable Securities deliverable to a Covered Person under an effective Exchange Registration)
pursuant to Rule 144(b)(1) under the Securities Act or, in the case of Registrable Securities that
are not “restricted securities” under Rule 144 under the Securities Act, pursuant to Section 4(1)
of the Securities Act (or, in each case, any successor provision then in effect) or (iii) cease to
be outstanding (or issuable upon exchange).
“Registration Expenses” means any and all expenses incident to the performance of or
compliance with any registration or marketing of securities, including all (i) SEC and securities
exchange registration and filing fees, and all other fees and expenses payable in connection with
the listing of securities on any securities exchange or automated interdealer quotation system,
(ii) fees and expenses of compliance with any securities or “blue sky” laws (including reasonable
fees and disbursements of counsel in connection with “blue sky” qualifications of the securities
registered), (iii) expenses in connection with the preparation, printing, mailing and delivery of
any registration statements, prospectuses and other documents in connection therewith and any
amendments or supplements thereto, (iv) security engraving and printing expenses, (v) internal
expenses of the Company and Holdings (including, without limitation, all salaries and expenses of
the officers and employees of the Company or Holdings performing legal or accounting duties), (vi)
reasonable fees and disbursements of counsel for the Company or Holdings and customary fees and
expenses for independent certified public accountants retained by the Company or Holdings
(including the expenses relating to any comfort letters or costs associated with the delivery by
independent certified public accountants of any comfort letters requested pursuant to Section
2.5(i)), (vii) reasonable fees and expenses of any special experts retained by the Company or
Holdings in connection with such registration, (viii) in connection with a registration pursuant to
Sections 2.2 or 2.3, reasonable fees of not more than one counsel for all of the Covered Persons
participating in the offering selected by the Demand Committee, (ix) fees
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and expenses in connection with any review by FINRA of the underwriting arrangements or other
terms of the offering, and all fees and expenses of any “qualified independent underwriter,”
including the fees and expenses of any counsel thereto, (x) fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding any underwriting fees,
discounts and commissions attributable to the sale of Registrable Securities, (xi) costs of
printing and producing any agreements among underwriters, underwriting agreements, any “blue sky”
or legal investment memoranda and any selling agreements and other documents in connection with the
offering, sale or delivery of the Registrable Securities, (xii) transfer agents’ and registrars’
fees and expenses and the fees and expenses of any other agent or trustee appointed in connection
with such offering, (xiii) expenses relating to any analyst or investor presentations or any “road
shows” undertaken in connection with the registration, marketing or selling of the Registrable
Securities, (xiv) fees and expenses payable in connection with any ratings of the Registrable
Securities, including expenses relating to any presentations to rating agencies and (xv) all
out-of-pocket costs and expenses incurred by the Company, Holdings or their appropriate officers in
connection with their compliance with Section 2.5(m).
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“Suspension Period” has the meaning ascribed to such term in Section 2.5(k).
Section 1.2 Definitions Generally.
Wherever required by the context of this Agreement, the singular shall include the plural and
vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa,
and references to any agreement, document or instrument shall be deemed to refer to such agreement,
document or instrument as amended, supplemented or modified from time to time. When used herein:
(a) the word “or” is not exclusive;
(b) the words “including,” “includes,” “included” and “include” are deemed to be
followed by the words “without limitation”;
(c) the terms “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular section, paragraph or
subdivision;
(d) the word “person” means any individual, corporation, limited liability company,
trust, joint venture, association, company, partnership or other legal entity or a
government or any department or agency thereof or self-regulatory organization; and
(e) all section, paragraph or clause references not attributed to a particular document
shall be references to such parts of this Agreement, and all exhibit, annex and schedule
references not attributed to a particular document shall be references to such exhibits,
annexes and schedules to this Agreement.
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ARTICLE II
REGISTRATION RIGHTS
REGISTRATION RIGHTS
Section 2.1 Exchange Registration.
(a) The Company shall use its commercially reasonable efforts to file with the SEC
prior to the time that Holdings Units held by Covered Persons become available for exchange
for Class A Common Stock pursuant to the terms of the Exchange Agreement and cause to be
declared effective under the Securities Act by the SEC promptly thereafter, one or more
registration statements (the “Exchange Registration”) covering (i) the delivery by
the Company from time to time to the Covered Persons of all shares of Class A Common Stock
deliverable to the Covered Persons in exchange for Holdings Units pursuant to the Exchange
Agreement or (ii) if the Company determines that the registration provided for in clause (i)
is not available for any reason, the registration of resale of such shares of Class A Common
Stock by the Covered Persons.
(b) The Company shall be liable for and pay all Registration Expenses in connection
with any Exchange Registration, regardless of whether such registration is effected.
(c) Upon notice to each Covered Person, the Company may postpone effecting a
registration pursuant to this Section 2.1 for a reasonable time specified in the notice but
not exceeding 120 days, if (i) the Board shall determine in good faith that effecting the
registration would materially and adversely affect an offering of securities of the Company
the preparation of which had then been commenced or (ii) the Company is in possession of
material non-public information the disclosure of which during the period specified in such
notice the Board believes in good faith would not be in the best interests of the Company.
Section 2.2 Demand Registration.
(a) If at any time the Company shall receive a written request (a “Demand
Notice”) from the Demand Committee that the Company effect the registration under the
Securities Act of all or any portion of the Registrable Securities specified in the Demand
Notice (a “Demand Registration”), specifying the information set forth under Section
2.5(j), then the Company shall use its commercially reasonable efforts to effect, as
expeditiously as reasonably practicable, subject to the restrictions in Section 2.2(d), the
registration under the Securities Act of the Registrable Securities for which the Demand
Committee has requested registration under this Section 2.2, all to the extent necessary to
permit the disposition (in accordance with the intended methods thereof as aforesaid) of the
Registrable Securities so to be registered.
(b) At any time prior to the effective date of the registration statement relating to
such registration, the Demand Committee may revoke such Demand Registration request by
providing a notice to the Company revoking such request. The Company shall be liable for
and pay all Registration Expenses in connection with any Demand Registration.
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(c) If the sole or managing underwriter of a Demand Registration advises the Company in
writing that in its opinion the number of Registrable Securities and other securities
requested to be included exceeds the number of Registrable Securities and other securities
which can be sold in such offering without adversely affecting the distribution of the
securities being offered, the price that will be paid in such offering or the marketability
thereof, the Company will include in such registration the greatest number of (i)
Registrable Securities proposed to be registered by the holders thereof, (ii) securities
having Other Registration Rights that are pari passu with the demand rights granted in
respect of Registrable Securities hereunder proposed to be registered by the holders thereof
and (iii) securities proposed to be registered by the Company for its own account which in
the opinion of such underwriters can be sold in such offering without adversely affecting
the distribution of the securities being offered, the price that will be paid in such
offering or the marketability thereof, ratably among the holders of Registrable Securities,
the holders of such Other Registration Rights and the Company, based (A) as between the
Company and such holders requesting registration, on the respective amounts of securities
requested to be registered, and (B) as among the holders requesting registration, on the
respective amounts of Registrable Securities (whether requested to be registered pursuant to
Sections 2.1, 2.2 or 2.3) and securities subject to such Other Registration Rights, as the
case may be, held by each such holder; provided, however, that the Company shall have the
right (the “Priority Right”) to receive priority over all holders of Registrable
Securities in any Demand Registration to be effected under this Section 2.2 with respect to
securities that the Company proposes to include in such registration for its own account by
giving written notice of its election to exercise such Priority Right to the holders of
Registrable Securities requesting registration thereof.
(d) Upon notice to the Demand Committee, the Company may postpone effecting a
registration pursuant to this Section 2.2 on up to three occasions during any period of six
consecutive months for a reasonable time specified in the notice but not exceeding 120 days
in the aggregate (which period may not be extended or renewed), if (i) the Board shall
determine in good faith that effecting the registration would materially and adversely
affect an offering of securities of the Company the preparation of which had then been
commenced or (ii) the Company is in possession of material non-public information the
disclosure of which during the period specified in such notice the Board believes in good
faith would not be in the best interests of the Company.
Section 2.3 Incidental Registration.
(a) Requests for Incidental Registration. At any time the Company proposes to
register any shares of Class A Common Stock under the Securities Act (other than an Exchange
Registration or registrations on such form(s) solely for registration of shares of Class A
Common Stock in connection with any employee benefit plan or dividend reinvestment plan or a
merger or consolidation), including registrations pursuant to Section 2.2(a), whether or not
for sale for its own account, the Company will give written notice to the Demand Committee
at least fifteen (15) days prior to the initial filing of such Registration Statement with
the SEC of its intent to file such registration statement. Upon the written request of the
Demand Committee made within twenty (20) days after any such notice is given (which request
shall specify the Registrable Securities intended
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to be disposed of by such holder), the Company will use its commercially reasonable
efforts to effect the registration (an “Incidental Registration”) under the
Securities Act of all Registrable Securities which the Company, as the case may be, has been
so requested to register by the Demand Committee; provided, however, that
if, at any time after giving written notice of its intention to register any securities and
prior to the effective date of the Registration Statement filed in connection with such
Incidental Registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give written notice
of such determination to each holder of such Registrable Securities and, thereupon, (a) in
the case of a determination not to register, the Company shall be relieved of its obligation
to register any Registrable Securities under this Section 2.3 in connection with such
registration (but not from its obligation to pay the expenses incurred in connection
therewith), and (b) in the case of a determination to delay registration, the Company shall
be permitted to delay registering any Registrable Securities under this Section 2.3 during
the period that the registration of such other securities is delayed.
(b) Priority on Incidental Registration. If the sole or managing underwriter
of a registration advises the Company in writing that in its opinion the number of
Registrable Securities and other securities requested to be included exceeds the number of
Registrable Securities and other securities which can be sold in such offering without
adversely affecting the distribution of the securities being offered, the price that will be
paid in such offering or the marketability thereof, the Company will include in such
registration the Registrable Securities and other securities of the Company in the following
order of priority:
(i) first, the greatest number of securities of the Company proposed to be included in
such registration by the Company for its own account and by holders of Other Registration
Rights that have priority over the Incidental Registration rights granted to holders of
Registrable Securities under this Agreement, which in the opinion of such underwriters can
be so sold; and
(ii) second, after all securities that the Company proposes to register for its own
account or for the accounts of holders of Other Registration Rights that have priority over
the Incidental Registration rights under this Agreement have been included, the greatest
amount of Registrable Securities and securities having Other Registration Rights that are
pari passu with Registrable Securities, in each case requested to be registered by
the holders thereof which in the opinion of such underwriters can be sold in such offering
without adversely affecting the distribution of the securities being offered, the price that
will be paid in such offering or the marketability thereof, ratably among the holders of
Registrable Securities (whether requested to be registered pursuant to Sections 2.1, 2.2 or
2.3) and securities subject to such Other Registration Rights based on the respective
amounts of Registrable Securities and securities subject to such Other Registration Rights
held by each such holder.
(c) Upon delivering a request under this Section 2.3, a Covered Person will, if
requested by the Company, execute and deliver a custody agreement and power of attorney in
form and substance reasonably satisfactory to the Company with respect to
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such Covered Person’s Securities to be registered pursuant to this Section 2.3 (a
“Custody Agreement and Power of Attorney”). The Custody Agreement and Power of
Attorney will provide, among other things, that the Covered Person will deliver to and
deposit in custody with the custodian and attorney-in-fact named therein a certificate or
certificates representing such Securities (duly endorsed in blank by the registered owner or
owners thereof or accompanied by duly executed stock powers in blank) and irrevocably
appoint said custodian and attorney-in-fact with full power and authority to act under the
Custody Agreement and Power of Attorney on such Covered Person’s behalf with respect to the
matters specified therein. Such Covered Person also agrees to execute such other agreements
as the Company may reasonably request to further evidence the provisions of this Section
2.3.
(d) Notwithstanding anything to the contrary herein, after the time the Company has
caused to become effective an Exchange Registration, covering all shares to be registered
pursuant to Section 2.1 hereof, and at any time that such Exchange Registration remains
effective and available for use, any Covered Person who is not an “affiliate” of the Company
for purposes of Rule 144 shall cease to have any Incidental Registration rights pursuant to
this Section 2.3.
Section 2.4 Holdback Agreements.
(a) Each Covered Person agrees that if requested in writing in connection with an
underwritten offering made pursuant to a Registration Statement for which such Covered
Person has registration rights pursuant to this Article II by the managing underwriter or
underwriters of such underwritten offering, such holder will not effect any Public Sale or
distribution of any of the securities being registered or any securities convertible or
exchangeable or exercisable for such securities (except as part of such underwritten
offering), during the period beginning 10 days prior to, and ending 180 days after, the
effective date of the Company’s initial public offering of the Class A Common Stock (the
“IPO Holdback Period”), except as part of such Initial Public Offering, or, in the case of
any subsequent underwritten offering pursuant to this Agreement, during the period beginning
seven days prior to, and ending 90 days after, the effective date of any such subsequent
underwritten registration (the “Follow-On Holdback Period”), except as part of any such
underwritten registration (or for such shorter period as to which the managing underwriter
or underwriters may agree, provided that such shorter period applies equally to all Covered
Persons). If (i) the Company issues an earnings release or discloses other material
information or a material event relating to the Company occurs during the last 17 days of
the IPO Holdback Period or a Follow-On Holdback Period (as applicable) or (ii) prior to the
expiration of the IPO Holdback Period or a Follow-On Holdback Period (as applicable), the
Company announces that it will release earnings results during the 16-day period beginning
upon the expiration of such period, then to the extent necessary for a managing or
co-managing underwriter of a registered offering required hereunder to comply with FINRA
Rule 2711(f)(4), the IPO Holdback Period or the Follow-On Holdback Period (as applicable)
will be extended until 18 days after the earnings release or disclosure of other material
information or the occurrence of the material event, as the case may be (a “Holdback
Extension”). Notwithstanding the foregoing, no Follow-On Holdback Period shall apply to any
person who (i) is not an
8
executive officer or director of the Company, a selling stockholder in such offering or
a person selling Holdings Units to the Company, Holdings or any of the their respective
subsidiaries if such purchase is funded by the sale of Class A Common Stock by the Company,
Holdings or any of their respective subsidiaries in such offering and (ii) holds, together
with its affiliates, less than 1% of the then-outstanding Class A Common Stock.
(b) The Company agrees (i) not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and during the 180-day period beginning on the
effective date of any underwritten Demand Registration (or for such shorter period as to
which the managing underwriter or underwriters may agree), except as part of such Demand
Registration or in connection with an Exchange Registration or any employee benefit or
similar plan, any dividend reinvestment plan, or a business acquisition or combination and
(ii) to use all reasonable efforts to cause each holder of at least 5% (on a fully-diluted
basis) of its Class A Common Stock, or any securities convertible into or exchangeable or
exercisable for such Class A Common Stock, which are or may be purchased from the Company at
any time after the date of this Agreement (other than in a registered offering) to agree not
to effect any sale or distribution of any such Class A Common Stock during such period
(except as part of such underwritten offering, if otherwise permitted).
Section 2.5 Registration Procedures.
In connection with any request by the Demand Committee that Registrable Securities be
registered pursuant to Sections 2.2 or 2.3, subject to the provisions of such Sections, the
paragraphs below shall be applicable, and in connection with any Exchange Registration pursuant to
▇▇▇▇▇▇▇ ▇.▇, ▇▇▇▇▇▇▇▇▇▇ (▇), (▇), (▇), (▇), (▇), (▇), (▇) and (n) below shall be applicable:
(a) The Company shall as expeditiously as reasonably practicable prepare and file with
the SEC a registration statement on any form for which the Company then qualifies or that
counsel for the Company shall deem appropriate and which form shall be available for the
registration of the Registrable Securities to be registered thereunder in accordance with
the intended method of distribution thereof, and use its commercially reasonable efforts to
cause such filed registration statement to become and remain effective for a period of not
less than 40 days, or in the case of an Exchange Registration until all of the Registrable
Securities of the Covered Persons included in any such registration statement (each, a
“Registering Covered Person”) shall have actually been exchanged thereunder.
(b) Prior to filing a registration statement or prospectus or any amendment or
supplement thereto, the Company shall, if requested, furnish to each Registering Covered
Person and each underwriter, if any, of the Registrable Securities covered by such
registration statement copies of such registration statement as proposed to be filed, and
thereafter the Company shall furnish to such Registering Covered Person and underwriter, if
any, such number of copies of such registration statement, each amendment and supplement
thereto (in each case including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including each preliminary
prospectus and any summary
9
prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the
Securities Act and such other documents as such Registering Covered Person or underwriter
may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by such Registering Covered Person. The Registering Covered Person shall have the
right to request that the Company modify any information contained in such registration
statement, amendment and supplement thereto pertaining to such Registering Covered Person
and the Company shall use its commercially reasonable efforts to comply with such request,
provided, however, that the Company shall not have any obligation to so modify any
information if the Company reasonably expects that so doing would cause the prospectus to
contain an untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading.
(c) After the filing of the registration statement, the Company shall (i) cause the
related prospectus to be supplemented by any required prospectus supplement, and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii) comply with
the provisions of the Securities Act with respect to the disposition of all Registrable
Securities covered by such registration statement during the applicable period in accordance
with the intended methods of disposition by the Registering Covered Person thereof set forth
in such registration statement or supplement to such prospectus and (iii) promptly notify
each Registering Covered Person holding Registrable Securities covered by such registration
statement of any stop order issued or threatened by the SEC suspending the effectiveness of
such registration statement or any state securities commission and take all commercially
reasonable efforts to prevent the entry of such stop order or to obtain the withdrawal of
such order if entered.
(d) To the extent any “free writing prospectus” (as defined in Rule 405 under the
Securities Act) is used, the Company shall file with the SEC any free writing prospectus
that is required to be filed by the Company with the SEC in accordance with the Securities
Act and retain any free writing prospectus not required to be filed.
(e) The Company shall use its commercially reasonable efforts to (i) register or
qualify the Registrable Securities covered by such registration statement under such other
securities or “blue sky” laws of such jurisdictions in the United States as any Registering
Covered Person holding such Registrable Securities or each underwriter, if any, reasonably
(in light of such member’s intended plan of distribution) requests and (ii) cause such
Registrable Securities to be registered with or approved by such other governmental agencies
or authorities as may be necessary by virtue of the business and operations of the Company
and do any and all other acts and things that may be reasonably necessary or advisable to
enable such Registering Covered Person to consummate the disposition of the Registrable
Securities owned by such person, provided that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 2.5(e), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such jurisdiction.
10
(f) The Company shall immediately notify each Registering Covered Person holding such
Registrable Securities covered by such registration statement or each underwriter, if any,
at any time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and promptly prepare and make available to each such
Registering Covered Person or underwriter, if any, and file with the SEC any such supplement
or amendment.
(g) The Demand Committee shall select an underwriter or underwriters in connection with
any Public Offering. In connection with any Public Offering, the Company shall enter into
customary agreements (including an underwriting agreement in customary form) and take such
all other actions as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities in any such Public Offering, including if
necessary the engagement of a “qualified independent underwriter” in connection with the
qualification of the underwriting arrangements with FINRA.
(h) Subject to the execution of confidentiality agreements satisfactory in form and
substance to the Company in the exercise of its good faith judgment, pursuant to the
reasonable request of the Demand Committee or underwriter (if any), the Company will give to
each Registering Covered Person, each underwriter (if any) and their respective counsel and
accountants (i) reasonable and customary access to its books and records and (ii) such
opportunities to discuss the business of the Company with its directors, officers,
employees, counsel and the independent public accountants who have certified its financial
statements, as shall be appropriate, in the reasonable judgment of counsel to such
Registering Covered Person or underwriter, to enable them to exercise their due diligence
responsibility.
(i) The Company shall use its commercially reasonable efforts to furnish to each
Registering Covered Person and to each such underwriter, if any, a signed counterpart,
addressed to such person or underwriter, of (i) an opinion or opinions of counsel to the
Company and (ii) a comfort letter or comfort letters from the Company’s independent public
accountants, each in customary form and covering such matters of the kind customarily
covered by opinions or comfort letters, as the case may be, as the Demand Committee or
underwriter reasonably requests.
(j) Each Registering Covered Person registering securities under Sections 2.2 or 2.3
shall promptly furnish in writing to the Company the information set forth in Appendix B and
such other information regarding itself, the distribution of the Registrable Securities as
the Company may from time to time reasonably request and such other information as may be
legally required or advisable in connection with such registration.
(k) Each Registering Covered Person and each underwriter, if any, agrees that, upon
receipt of any notice from the Company of the happening of any event of the
11
kind described in Section 2.5(f), such Registering Covered Person or underwriter shall
forthwith discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Registering Covered Person’s or
underwriter’s receipt of the copies of the supplemented or amended prospectus contemplated
by Section 2.5(f), provided, however, that, upon written notice to each
Registering Covered Person and each underwriter, if any, and for a reasonable time specified
in the notice but not exceeding 60 days thereafter or 90 days in any 365 day period (the
“Suspension Period”), the Company may suspend the use or effectiveness of any
registration statement if the Company’s Board reasonably believes that the Company is in
possession of material non-public information, the failure of which to be disclosed in the
prospectus included in the registration statement could constitute a material misstatement
or omission; and, if so directed by the Company, such Registering Covered Person or
underwriter shall deliver to the Company all copies, other than any permanent file copies
then in such Registering Covered Person’s possession, of the most recent prospectus covering
such Registrable Securities at the time of receipt of such notice. If the Company shall
give such notice, the Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in Section 2.5(a))
by the number of days during the period from and including the date of the giving of notice
pursuant to Section 2.5(f) to the date when the Company shall make available to such
Registering Covered Person a prospectus supplemented or amended to conform with the
requirements of Section 2.5(f).
(l) The Company shall use its commercially reasonable efforts to list all Registrable
Securities covered by such registration statement on any securities exchange or quotation
system on which any of the Registrable Securities are then listed or traded.
(m) The Company shall cause appropriate officers of the Company or Holdings to (i)
prepare and make presentations at any “road shows” and before analysts and rating agencies,
as the case may be, (ii) take other actions to obtain ratings for any Registrable Securities
and (iii) otherwise use their commercially reasonable efforts to cooperate as reasonably
requested by the underwriters in the offering, marketing or selling of the Registrable
Securities.
(n) The Company shall cooperate with the Registering Covered Persons to facilitate the
timely delivery of Registrable Securities to be sold, which shall not bear any restrictive
legends, and to enable such Registrable Securities to be issued in such denominations and
registered in such names as such Registering Covered Persons may reasonably request at least
two business days prior to the closing of any sale of Registrable Securities.
Section 2.6 Indemnification by the Company. In the event of any
registration of any Registrable Securities of the Company under the
Securities Act pursuant to this Article II, the Company will, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, a Registering Covered Person, each affiliate of such
Registering Covered Person and their respective directors and officers or general and limited
partners or members and managing members (including any director, officer, affiliate, employee,
agent and controlling person of any of the foregoing) and each other person, if any, who controls
such seller within the meaning of
12
the Securities Act (collectively, the “Indemnified Parties”), from and against any and
all losses, claims, damages and liabilities (including, without limitation, legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are based upon, (1) any
untrue statement or alleged untrue statement of a material fact contained in any registration
statement or amendment or supplement thereto under which such Registrable Securities were
registered or any omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein not misleading, or (2) any
untrue statement or alleged untrue statement of a material fact contained in any prospectus, any
free writing prospectus or any “issuer information” filed or required to be filed pursuant to Rule
433(d) under the Securities Act in respect of the Registrable Securities, or amendment or
supplement thereto, or any omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, that the Company shall not be liable to any Indemnified
Party in any such case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such registration statement,
prospectus, any free writing prospectus or any “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the Securities Act in respect of the Registrable Securities, or
amendment or supplement thereto, in reliance upon and in conformity with written information
furnished to the Company with respect to such seller or any underwriter specifically for use in the
preparation thereof.
Section 2.7 Indemnification by Registering Covered Persons. Each Registering
Covered Person hereby indemnifies and holds harmless, and the Company may
require, as a condition to including any Registrable Securities in any registration statement filed
in accordance with this Article II, that the Company shall have received an undertaking reasonably
satisfactory to it from any underwriter to indemnify and hold harmless, the Company and all other
prospective sellers of Registrable Securities, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company and all other prospective
sellers of Registrable Securities within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the indemnity set forth in Section 2.6 above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with written information furnished to the Company with respect to such seller
specifically for use in the preparation of such registration statement, prospectus, any free
writing prospectus or any “issuer information” filed or required to be filed pursuant to Rule
433(d) under the Securities Act in respect of the Registrable Securities, or amendment or
supplement thereto. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company, any of the Registering Covered Persons or any
underwriter, or any of their respective affiliates, directors, officers or controlling persons and
shall survive the transfer of such securities by such person. In no event shall any such
indemnification liability of any Registering Covered Person be greater in amount than the dollar
amount of the proceeds received by such Registering Covered Person upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
13
Section 2.8 Conduct of Indemnification Proceedings. Promptly after receipt by an
Indemnified Party hereunder of written notice of the commencement
of any action or proceeding with respect to which a claim for indemnification may be made pursuant
to this Article II, such Indemnified Party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the commencement of such
action; provided, that the failure of the Indemnified Party to give notice as provided herein shall
not relieve the indemnifying party of its obligations under this Article II, except to the extent
that the indemnifying party is materially prejudiced by such failure to give notice.
In case any such action is brought against an Indemnified Party, unless in such Indemnified
Party’s reasonable judgment a conflict of interest between such Indemnified Party and indemnifying
parties may exist in respect of such claim, the indemnifying party will be entitled to participate
in and to assume the defense thereof, jointly with any other indemnifying party similarly notified
to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and
after notice from the indemnifying party to such Indemnified Party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such Indemnified Party for any legal
or other expenses subsequently incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation. It is understood and agreed that the indemnifying person
shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition to any local counsel)
for all Indemnified Parties, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm (x) for any Covered Person, its affiliates, directors and officers
and any control persons of such Indemnified Party shall be designated in writing by the Demand
Committee, (y) in all other cases shall be designated in writing by the Board. The indemnifying
person shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying person agrees to indemnify each Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying person shall, without the
written consent of the Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Party, unless such settlement
(A) includes an unconditional release of such Indemnified Party, in form and substance reasonably
satisfactory to such Indemnified Party, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to or any admission of fault, culpability
or a failure to act by or on behalf of any Indemnified Party.
Section 2.9 Contribution. If the indemnification provided for in this
Article II from the indemnifying party is
unavailable to an Indemnified Party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then the indemnifying party, in lieu of indemnifying
such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as
a result of such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and Indemnified Parties in
connection with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative fault of such
indemnifying party and Indemnified Parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a
14
material fact or omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or Indemnified Parties, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party under this Section 2.9 as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 2.9 were determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Section 2.10 Participation in Public Offering. No Covered Person
may participate in any Public Offering hereunder unless such Covered Person
(a) agrees to sell such Covered Person’s securities on the basis provided in any underwriting
arrangements approved by the Covered Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such underwriting
arrangements and the provisions of this Agreement in respect of registration rights.
Section 2.11 Other Indemnification. Indemnification similar to
that specified herein (with appropriate modifications) shall be
given by the Company and the Registering Covered Person participating therein with respect to any
required registration or other qualification of securities under any federal or state law or
regulation or Governmental Authority other than the Securities Act.
Section 2.12 Parties in Interest. Each Covered Person
shall be entitled to receive the benefits of this Agreement and shall be
bound by the terms and provisions of this Agreement by reason of such Covered Person’s election to
participate in a registration under this Article II. To the extent Holdings Units are effectively
transferred in accordance with the terms of the Holdings LLC Agreement, the Permitted Transferee of
such Holdings Units shall be entitled to receive the benefits of this Agreement and shall be bound
by the terms and provisions of this Agreement upon becoming bound hereby pursuant to Section
3.1(c).
Section 2.13 Acknowledgement Regarding the Company. Other than
those determinations reserved expressly to the Demand Committee, all determinations
necessary or advisable under this Article II shall be made by the Board, the determinations of
which shall be final and binding.
Section 2.14 Mergers, Recapitalizations, Exchanges or Other Transactions Affecting
Registrable Securities. The provisions of this Agreement shall apply to the full extent set forth herein with respect
to the Registrable Securities, to any and all securities or units of Holdings or the Company or any
successor or assign of any such person (whether by merger, amalgamation, consolidation, sale of
assets or otherwise) that may be issued in respect of, in
15
exchange for, or in substitution of such Registrable Securities, by reason of any dividend,
split, issuance, reverse split, combination, recapitalization, reclassification, merger,
amalgamation, consolidation or otherwise.
ARTICLE III
MISCELLANEOUS
MISCELLANEOUS
Section 3.1 Term of the Agreement; Termination of Certain Provisions.
(a) The term of this Agreement shall continue until the first to occur of (i) such time as no
Covered Person holds any Covered Holdings Units or Registrable Securities and (ii) such time as the
Agreement is terminated by the Company and the Demand Committee. This Agreement may be amended only
with the consent of the Company and the Demand Committee.
(b) Unless this Agreement is theretofore terminated pursuant to Section 3.1(a) hereof, a
Covered Person shall be bound by the provisions of this Agreement with respect to any Covered
Holdings Units or Registrable Securities until such time as such Covered Person ceases to hold any
Covered Holdings Units or Registrable Securities. Thereafter, such Covered Person shall no longer
be bound by the provisions of this Agreement other than Sections 2.7, 2.8, 2.9 and 2.11 and this
Article III.
(c) Any Permitted Transferee of a Covered Person shall be entitled to become part to this
agreement as a Covered Person; provided, that, such Permitted Transferee shall first sign an
agreement in the form approved by the Company acknowledging that such Permitted Transferee is bound
by the terms and provisions of the Agreement.
Section 3.2 Assignment; Successors. This Agreement shall
be binding upon and inure to the benefit of the respective
legatees, legal representatives, successors and assigns of the Covered Persons; provided, however,
that a Covered Person may not assign this Agreement or any of his rights or obligations hereunder,
and any purported assignment in breach hereof by a Covered Person shall be void except in
connection with any transfer to a Permitted Transferee in accordance with this Agreement; and
provided further that no assignment of this Agreement by the Company or to a successor of the
Company (by operation of law or otherwise) shall be valid unless such assignment is made to a
person which succeeds to the business of such person substantially as an entirety.
Section 3.3 Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
Section 3.4 Severability. Whenever possible, each provision
of this Agreement shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision
or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
16
Section 3.5 Entire Agreement.
Except as otherwise expressly set forth herein, this document embodies the complete agreement
and understanding among the parties hereto with respect to the subject matter hereof and supersedes
and preempts any prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
Section 3.6 Successors and Assigns; Certain Transferees Bound Hereby.
Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and
be enforceable by each of the Company and Holdings and their successors and assigns, and by the
Covered Persons and their respective successors and assigns so long as they hold shares of Class A
Common Stock or Holdings Units.
Section 3.7 Counterparts.
This Agreement may be executed in separate counterparts each of which shall be an original and
all of which taken together shall constitute one and the same agreement.
Section 3.8 Remedies.
The Company, Holdings and the Covered Persons shall be entitled to enforce their rights under
this Agreement specifically, to recover damages by reason of any breach of any provision of this
Agreement (including costs of enforcement) and to exercise all other rights existing in their
favor. The parties hereto agree and acknowledge that money damages would not be an adequate remedy
for any breach of the provisions of this Agreement and that, in addition to any other rights and
remedies existing in its favor, the Company, Holdings or any Covered Person may in its or his sole
discretion apply to any court of law or equity of competent jurisdiction for specific performance
and/or other injunctive relief (without posting a bond or other security) in order to enforce or
prevent any violation of the provisions of this Agreement.
Section 3.9 Notices.
All notices, requests, claims, demands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in
person, by courier service, by fax, by electronic mail (delivery receipt requested) or by
registered or certified mail (postage prepaid, return receipt requested) to the respective parties
at the following addresses (or at such other address for a party as shall be as specified in a
notice given in accordance with this Section 3.9):
| (a) | If to the Company at: |
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
17
| (b) | If to Holdings at: |
FXCM Holdings, LLC
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
| (c) | If to any Covered Person, to the address and other contact information set forth in the records of Holdings from time to time. |
Section 3.10 Governing Law. The Delaware Limited Liability Company Act shall govern all questions arising under this
Agreement concerning the relative rights of Holdings and the holders of its limited liability
company interests. The Delaware General Company Law shall govern all questions arising under this
Agreement concerning the relative rights of the Company and its stockholders. All other questions
concerning the construction, validity and interpretation of this Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
Section 3.11 Specific Performance. Each party hereto acknowledges that the remedies at law of the other parties for a breach
or threatened breach of this Agreement would be inadequate and, in recognition of this fact, any
party to this Agreement, without posting any bond, and in addition to all other remedies that may
be available, shall be entitled to obtain equitable relief in the form of specific performance, a
temporary restraining order, a temporary or permanent injunction or any other equitable remedy that
may be then available.
Section 3.12 Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
[Remainder of Page Intentionally Left Blank]
18
IN WITNESS WHEREOF, the parties hereto have duly executed or caused to be duly executed this
Agreement as of the dates indicated.
| FXCM INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| COVERED PERSONS |
||||
| Name: | ||||
| Name: | ||||
| Name: | ||||
| Name: | ||||
Appendix A
Covered Person Questionnaire
The undersigned Covered Person understands that the Company has filed or intends to file with the
SEC a registration statement for the registration of the shares of Class A Common Stock (as such
may be amended, the “Registration Statement”), in accordance with Sections 2.2 or 2.3 of
the Registration Rights Agreement, dated as of ____________ (the “Registration Rights
Agreement”), among the Company and the Covered Persons referred to therein. A copy of the
Agreement is available from the Company upon request at the address set forth below. All
capitalized terms used and not otherwise defined herein shall have the meanings ascribed thereto in
the Registration Rights Agreement.
NOTICE
The undersigned Covered Person hereby gives notice to the Company of its intention to register
Registrable Securities beneficially owned by it and listed below in Item 3 (unless otherwise
specified under Item 3) pursuant to the Registration Statement. The undersigned, by signing and
returning this Questionnaire, understands that it will be bound by the terms and conditions of this
Questionnaire and the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has agreed to indemnify and hold
harmless the Company and all other prospective sellers of Registrable Securities, each officer of
the Company who signed the Registration Statement and each person, if any, who controls the Company
and all other prospective sellers of Registrable Securities within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities arising in connection with statements made or omissions concerning the
undersigned in the Registration Statement, prospectus, any free writing prospectus or any “issuer
information” in reliance upon the information provided in this Questionnaire.
The undersigned Covered Person hereby provides the following information to the Company and
represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
| 1. | Name. |
| (a) | Full Legal Name of Covered Person: |
||
| (b) | Full Legal Name of Covered Person (if not the same as (a) above) through which
Registrable Securities Listed in Item 3 below are held: |
| (c) | Full Legal name of DTC Participant (if applicable and if not the same as (b)
above) through which Registrable Securities listed in Item 3 below are held: |
||
| (d) | Full Legal Name of natural control person (which means a natural person who
directly or indirectly alone or with others has power to vote or dispose of the
Registrable Securities listed in Item 3 below): |
| 2. | Address for Notices to Covered Person: |
| |
||
| |
||
| |
||
| Telephone: |
||
| Fax: |
||
| Email: |
||
| Contact
Person: |
| 3. | Beneficial Ownership of Registrable Securities: | |
| Number of Registrable Securities beneficially owned: |
| 4. | Broker-Dealer Status: |
| (a) | Are you a broker-dealer? |
Yes ¨ No ¨
| Note: | If yes, the SEC’s staff has indicated that you should be identified as an underwriter in the Registration Statement. | ||
| (b) | Are you an affiliate of a broker-dealer? |
Yes ¨ No ¨
If yes, please identify the broker-dealer with whom the Covered Person is affiliated
and the nature of the affiliation:
| (c) | If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities? |
Yes ¨ No ¨
| Note: If no, the SEC’s staff has indicated that you should be identified as an underwriter in the Registration Statement. | |||
| (d) | If you are (1) a broker-dealer or (2) an affiliate of a broker-dealer and answered “no” to Question 4(c), do you consent to being named as an underwriter in the Registration Statement? |
Yes ¨ No ¨
| 5. | Beneficial Ownership of Other Securities of the Company Owned by the Covered Person. | |
| Except as set forth below in this Item 5, the undersigned Covered Person is not the beneficial or registered owner of any securities of the Company other than the Registrable Securities listed above in Item 3. | ||
| Type and Amount of Other Securities beneficially owned by the Covered Person: |
| 6. | Relationships with the Company: | |
| Except as set forth below, neither the undersigned Covered Person nor any of its affiliates, officers, directors or principal equity holders (owners of 5% or more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years. | ||
| State any exceptions here: |
| 7. | Intended Method of Disposition of Registrable Securities (Only Applicable to a Demand Registration Effected Pursuant to Section 2.2 of the Registration Rights Agreement): | |
| Intended Method or Methods of Disposition of Registrable Securities beneficially
owned: |
The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date hereof and at any time while the
Registration Statement remains in effect.
By signing below, the undersigned consents to the disclosure of the information contained herein in
its answers to Items 1 through 7 and the inclusion of such information in the Registration
Statement and the related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of the Registration
Statement and the related prospectus.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Questionnaire to be
executed and delivered either in person or by its duly authorized agent.
| Dated: | Beneficial Owner: | |||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
PLEASE SEND A COPY OF THE COMPLETED AND EXECUTED QUESTIONNAIRE BY FAX OR ELECTRONIC MAIL, AND
RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:
FXCM Inc.
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Attention: Chief Financial Officer
Fax:
Electronic Mail:
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Attention: Chief Financial Officer
Fax:
Electronic Mail: