exv10w1






Exhibit 10.1




 






FXCM HOLDINGS, LLC



A Delaware Limited Liability Company



 





THIRD AMENDED AND RESTATED



LIMITED LIABILITY COMPANY AGREEMENT



Dated as of                , 2010


THE LIMITED LIABILITY COMPANY INTERESTS IN FXCM HOLDINGS, LLC HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), THE SECURITIES LAWS OF ANY STATE OR
ANY OTHER APPLICABLE SECURITIES LAWS AND ARE BEING SOLD IN RELIANCE UPON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. SUCH INTERESTS MUST BE ACQUIRED FOR
INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR
TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH (I) THE SECURITIES ACT, ANY APPLICABLE SECURITIES
LAWS OF ANY STATE AND ANY OTHER APPLICABLE SECURITIES LAWS; (II) THE TERMS AND CONDITIONS OF THIS
THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT; AND (III) ANY OTHER TERMS AND
CONDITIONS AGREED TO IN WRITING BETWEEN THE MANAGING MEMBER AND THE APPLICABLE MEMBER. THE LIMITED
LIABILITY COMPANY INTERESTS MAY NOT BE TRANSFERRED OF RECORD EXCEPT IN COMPLIANCE WITH SUCH LAWS,
THIS THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, AND ANY OTHER TERMS AND
CONDITIONS AGREED TO IN WRITING BY THE MANAGING MEMBER AND THE APPLICABLE MEMBER. THEREFORE,
PURCHASERS AND OTHER TRANSFEREES OF SUCH LIMITED LIABILITY COMPANY INTERESTS WILL BE REQUIRED TO
BEAR THE RISK OF THEIR INVESTMENT OR ACQUISITION FOR AN INDEFINITE PERIOD OF TIME.




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Terms Generally
	 	 	9	 
	 
	 	 	 	 
	ARTICLE II GENERAL PROVISIONS
	 	 	10	 
	Section 2.1. Formation
	 	 	10	 
	Section 2.2. Name
	 	 	10	 
	Section 2.3. Section Term
	 	 	11	 
	Section 2.4. Purpose; Powers
	 	 	11	 
	Section 2.5. Existence and Good Standing; Foreign Qualification
	 	 	11	 
	Section 2.6. Registered Office; Registered Agent; Principal Office; Other Offices
	 	 	11	 
	Section 2.7. No State Law Partnership
	 	 	12	 
	Section 2.8. Admission
	 	 	12	 
	 
	 	 	 	 
	ARTICLE III CAPITALIZATION
	 	 	13	 
	Section 3.1. Units; Initial Capitalization; Schedules
	 	 	13	 
	Section 3.2. Authorization and Issuance of Additional Units
	 	 	13	 
	Section 3.3. Capital Accounts
	 	 	14	 
	Section 3.4. No Withdrawal
	 	 	17	 
	Section 3.5. Loans From Members
	 	 	17	 
	Section 3.6. No Right of Partition
	 	 	17	 
	Section 3.7. Non-Certification of Units; Legend; Units are Securities
	 	 	17	 
	 
	 	 	 	 
	ARTICLE IV DISTRIBUTIONS
	 	 	19	 
	Section 4.1. Distributions
	 	 	19	 
	Section 4.2. Limitation
	 	 	19	 
	Section 4.3. Successors
	 	 	19	 
	Section 4.4. Tax Distributions
	 	 	19	 
	Section 4.5. Tax Advances; Security Interest and Right of Set Off; Indemnification
	 	 	20	 
	 
	 	 	 	 
	ARTICLE V ALLOCATIONS
	 	 	20	 
	Section 5.1. Allocations for Capital Account Purposes
	 	 	20	 
	Section 5.2. Allocations for Tax Purposes
	 	 	23	 
	Section 5.3. Members’ Tax Reporting
	 	 	25	 
	Section 5.4. Certain Costs and Expenses
	 	 	25	 
	 
	 	 	 	 
	ARTICLE VI MANAGEMENT
	 	 	25	 
	Section 6.1. Managing Member; Delegation of Authority and Duties
	 	 	25	 
	Section 6.2. Officers
	 	 	26	 
	Section 6.3. Liability of Members
	 	 	27	 
	Section 6.4. Indemnification by the Company
	 	 	28	 
	Section 6.5. Investment Representations of Members
	 	 	29	 






i









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VII WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS;
ADMISSION OF NEW MEMBERS
	 	 	29	 
	Section 7.1. Member Withdrawal
	 	 	29	 
	Section 7.2. Bankruptcy
	 	 	29	 
	Section 7.3. Dissolution
	 	 	29	 
	Section 7.4. Transfer by Members
	 	 	30	 
	Section 7.5. Admission or Substitution of New Members
	 	 	31	 
	Section 7.6. Additional Requirements
	 	 	33	 
	Section 7.7. Mandatory Exchange
	 	 	33	 
	 
	 	 	 	 
	ARTICLE VIII BOOKS AND RECORDS; FINANCIAL STATEMENTS AND OTHER INFORMATION;
TAX MATTERS
	 	 	33	 
	Section 8.1. Books and Records
	 	 	33	 
	Section 8.2. Information
	 	 	33	 
	Section 8.3. Fiscal Year
	 	 	34	 
	Section 8.4. Certain Tax Matters
	 	 	34	 
	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS
	 	 	35	 
	Section 9.1. Separate Agreements; Schedules
	 	 	35	 
	Section 9.2. Governing Law
	 	 	36	 
	Section 9.3. Successors and Assigns
	 	 	36	 
	Section 9.4. Amendments and Waivers
	 	 	36	 
	Section 9.5. Notices
	 	 	37	 
	Section 9.6. Counterparts
	 	 	38	 
	Section 9.7. Power of Attorney
	 	 	38	 
	Section 9.8. Entire Agreement
	 	 	38	 
	Section 9.9. Remedies
	 	 	38	 
	Section 9.10. Severability
	 	 	39	 
	Section 9.11. Creditors
	 	 	39	 
	Section 9.12. Waiver
	 	 	39	 
	Section 9.13. Further Action
	 	 	39	 
	Section 9.14. Delivery by Facsimile or Email
	 	 	39	 






 ii




 









 





THIRD AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

FXCM HOLDINGS, LLC

A Delaware Limited Liability Company




          This THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of FXCM Holdings, LLC (the
“Company”), dated and effective as of           , 2010 (this “Agreement”),
is adopted, executed and agreed to, for good and valuable consideration, by and among the Members
(as defined below).




          WHEREAS, the Certificate of Formation of the Company (the “Certificate”) was filed
with the Office of the Secretary of State of Delaware on November 17, 2005;




          WHEREAS, the Limited Liability Company Agreement of the Company, dated as of January 10, 2007,
was executed by the original members of the Company, setting forth certain agreements as to the
organization, management and operation of the Company and the Members’ respective rights and
obligations with respect thereto (the “Original Agreement”);




          WHEREAS, as of January 17, 2008, the Original Agreement was amended and restated in accordance
with its terms (as amended by Amendment No. 1 thereto effective as of December 31, 2009, the
“First Amended and Restated Agreement”)




          WHEREAS, as of September [__], 2010, the First Amended and Restated Agreement was amended and
restated in accordance with its terms (the “Second Amended and Restated Agreement”);




          WHEREAS, the requisite Members (as defined in the Second Amended and Restated Agreement) wish
to amend and restate the Second Amended and Restated Agreement in accordance with its terms and, in
connection therewith, to (1) convert all outstanding limited liability company interests in the
Company into Class A Units (as defined below) and (2) admit FXCM Inc., a Delaware corporation, as
sole Managing Member of the Company; and




          WHEREAS, the parties hereto desire to enter into this Third Amended and Restated Limited
Liability Company Agreement of the Company.




          NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the
parties hereto, each intending to be legally bound, agree that the Second Amended and Restated
Agreement is hereby amended and restated in its entirety as follows:




ARTICLE I




DEFINITIONS



          Section 1.1. Definitions.




          Unless the context otherwise requires, the following terms shall have the following meanings
for purposes of this Agreement:




1









 





          “Act” means the Delaware Limited Liability Company Act, 6 Del. C. Sections 18-101 et
seq., as it may be amended from time to time, and any successor to the Act.




          “Additional Member” means any Person that has been admitted to the Company as a Member
pursuant to Section 7.5 by virtue of having received its Membership Interest from the
Company and not from any other Member or Assignee.




          “Adjusted Capital Account” means the Capital Account maintained for each Member as of
the end of each Fiscal Year of the Company, (a) increased by any amounts that such Member is
obligated to restore under the standards set by Treasury Regulations Section 1.704-1(b)(2)(ii)(c)
(or is deemed obligated to restore under Treasury Regulations Sections 1.704-2(g) and
1.704-2(i)(5)) and (b) decreased by (i) the amount of all losses and deductions that, as of the end
of such Fiscal Year, are reasonably expected to be allocated to such Member in subsequent years
under Sections 704(e)(2) and 706(d) of the Code and Treasury Regulations Section 1.751-1(b)(2)(ii),
and (ii) the amount of all distributions that, as of the end of such Fiscal Year, are reasonably
expected to be made to such Member in subsequent years in accordance with the terms of this
Agreement or otherwise to the extent they exceed offsetting increases to such Member’s Capital
Account that are reasonably expected to occur during (or prior to) the year in which such
distributions are reasonably expected to be made (other than increases as a result of a minimum
gain chargeback pursuant to Section 5.1(b)(i) or Section 5.1(b)(ii)). The foregoing
definition of Adjusted Capital Account is intended to comply with the provisions of Treasury
Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. The
“Adjusted Capital Account” of a Member in respect of a Unit shall be the amount that such
Adjusted Capital Account would be if such Unit were the only interest in the Company held by such
Member from and after the date on which such Unit was first issued.




          “Adjusted Property” means any property the Carrying Value of which has been adjusted
pursuant to Section 3.3(d)(i) or Section 3.3(d)(ii).




          “Affiliate” when used with reference to another Person means any Person (other than
the Company), directly or indirectly, through one or more intermediaries, controlling, controlled
by, or under common control with, such other Person. In addition, Affiliates of a Member shall
include all its directors, managers, officers and employees in their capacities as such.




          “Agreed Value” of any Contributed Property means the fair market value of such
property or other consideration at the time of contribution as determined by the Managing Member,
without taking into account any liabilities to which such Contributed Property was subject at such
time.




          “Assignee” means any Transferee to which a Member or another Assignee has Transferred
all or a portion of its interest in the Company in accordance with the terms of this Agreement, but
that is not admitted to the Company as a Member.




          “Assumed Tax Rate” means, for any taxable year, the highest marginal effective rate of
federal, state and local income tax applicable to an individual resident in New York, New York (or,
if higher, a corporation doing business in New York, New York), taking account of any




2









 




differences in rates applicable to ordinary income and capital gains and any allowable
deductions in respect of such state and local taxes in computing a Member’s liability for federal
income tax; provided that the Assumed Tax Rate for ordinary income initially will be set at 55.0
percent, as adjusted by decision of the Managing Member; and provided further that the Assumed Tax
Rate for ordinary income shall be recalculated at any time that the applicable tax rates change.




          “Bankruptcy” means, with respect to any Person, (A) if such Person (i) makes an
assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is
adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy
or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any statute, law or
regulation, (v) files an answer or other pleading admitting or failing to contest the material
allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents
to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or
any substantial part of its properties, or (B) if 120 days after the commencement of any proceeding
against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or
similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or
if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee,
receiver or liquidator of such Person or of all or any substantial part of its properties, the
appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the
appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and
shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and
18-304 of the Act.




          “Book-Tax Disparity” means, with respect to any item of Contributed Property or
Adjusted Property, as of the date of any determination, the difference between the Carrying Value
of such Contributed Property or Adjusted Property and the adjusted basis thereof for federal income
tax purposes as of such date.




          “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required to close.




          “Capital Account” means the capital account maintained for a Member pursuant to
Section 3.3.




          “Capital Contribution” means any cash, cash equivalents or the Fair Market Value of
other property that a Member contributes to the Company with respect to any Unit or other Equity
Securities issued by the Company (net of liabilities assumed by the Company or to which such
property is subject).




          “Carrying Value” means (a) with respect to a Contributed Property, subject to the
following sentence, the Agreed Value of such property reduced (but not below zero) by all
depreciation, amortization and cost recovery deductions charged to the Members’ Capital Accounts in
respect of such Contributed Property, and (b) with respect to any other Company property, subject
to the following sentence, the adjusted basis of such property for federal income tax purposes, all
as of the time of determination. The Carrying Value of any property shall be adjusted from time to
time in accordance with Section 3.3(d)(i) and Section 3.3(d)(ii)




3









 




and to reflect changes, additions or other adjustments to the Carrying Value for dispositions
and acquisitions of Company properties, as deemed appropriate by the Managing Member.




          “Certificate” has the meaning set forth in the recitals hereto.




          “Class” means the classes into which the limited liability company interests in the
Company created in accordance with Section 3.1 and Section 3.2(a) may be classified
or divided from time to time by the Managing Member in its sole discretion pursuant to the
provisions of this Agreement. As of the date of this Agreement the only Class is the Class A Units.
Subclasses within a Class shall not be separate Classes for purposes of this Agreement. For all
purposes hereunder and under the Act, only such Classes expressly established under this Agreement,
including by the Managing Member in accordance with this Agreement, shall be deemed to be a class
or group of limited liability company interests in the Company. For the avoidance of doubt, to the
extent that the Managing Member holds limited liability company interests of any Class, the
Managing Member shall not be deemed to hold a separate Class of such interests from any other
Member because it is the Managing Member.




          “Class A Units” has the meaning set forth in Section 3.1.




          “Code” means the United States Internal Revenue Code of 1986, as amended from time to
time.




          “Company” has the meaning set forth in the preamble hereto.




          “Company Minimum Gain” has the meaning set forth for the term “partnership minimum
gain” in Treasury Regulations Section 1.704-2(d).




          “Control” means, when used with reference to any Person, the power to direct the
management or policies of such Person, directly or indirectly, by or through stock or other equity
ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or
other understanding (written or oral); and the terms “controlling” and “controlled” shall have
meanings correlative to the foregoing.




          “Contributed Property” means any property contributed to the Company by a Member.




          “Curative Allocation” means any allocation of an item of income, gain, deduction, loss
or credit pursuant to the provisions of Section 5.1(b)(ix).




          “Distributable Assets” means, with respect to any fiscal period, all cash receipts
(including from any operating, investing and financing activities) and (if distribution thereof is
determined to be necessary or desirable by the Managing Member) other assets of the Company from
any and all sources, reduced by operating cash expenses, contributions of capital to Subsidiaries
of the Company and payments (if any) required to be made in connection with any loan to the Company
and any reserve for contingencies or escrow required, in each case, as is determined by the
Managing Member in its sole discretion.




          “Economic Risk of Loss” has the meaning set forth in Section 5.1(b)(vi).




4









 





          “Equity Securities” means, as applicable, (i) any capital stock, limited liability
company or membership interests, partnership interests, or other equity interest, (ii) any
securities directly or indirectly convertible into or exchangeable for any capital stock, limited
liability company or membership interests, partnership interests, or other equity interest or
containing any profit participation features, (iii) any rights or options directly or indirectly to
subscribe for or to purchase any capital stock, limited liability company or membership interests,
partnership interest, other equity interest or securities containing any profit participation
features or to subscribe for or to purchase any securities directly or indirectly convertible into
or exchangeable for any capital stock, limited liability company or membership interests,
partnership interest, other equity interests or securities containing any profit participation
features, (iv) any equity appreciation rights, phantom equity rights or other similar rights, or
(v) any Equity Securities issued or issuable with respect to the securities referred to in clauses
(i) through (iv) above in connection with a combination, recapitalization, merger, consolidation or
other reorganization.




          “Exchange Agreement” means the Exchange Agreement, dated on or about the date hereof
among the Managing Member, the Company and the Holdings Unitholders (as defined therein) from time
to time party thereto, as it may be amended or supplemented from time to time.




          “Fair Market Value” means (i) in reference to a particular Unit or other Equity
Security issued by the Company or, as the case may be, all of the outstanding Units or other Equity
Securities issued by the Company, the hypothetical amount that would be distributed with respect to
such Unit(s) or Equity Security(ies), as determined pursuant to an appraisal, which appraisal shall
be subject to the approval of the Managing Member, performed at the expense of the Company by (A)
the Company or any of its Subsidiaries or (B) an investment bank, accounting firm or other Person
of national standing having particular expertise in the valuation of businesses comparable to that
of the Company selected by the Managing Member, and where such appraisal (1) determines the net
equity value of the Company, and (2) assumes the distribution to the Members pursuant to
Section 4.1 and ARTICLE VII of the proceeds that would hypothetically be received
with respect to such Unit(s) or other Equity Security(ies) issued by the Company based on such net
equity value, and (ii) in reference to assets or securities other than Units or other Equity
Securities issued by the Company, the fair market value for such assets or securities as between a
willing buyer and a willing seller in an arm’s length transaction occurring on the date of
valuation, taking into account all relevant factors determinative of value, as is determined by the
Managing Member in its sole discretion.




          “First Amended and Restated Agreement” has the meaning set forth in the recitals
hereto.




          “Fiscal Year” means the fiscal year of the Company, which unless otherwise determined
by the Managing Member in its sole discretion in accordance with Section 8.3, shall be the calendar
year ending on December 31.




          “GAAP” means accounting principles generally accepted in the United States of America,
consistently applied and maintained throughout the applicable periods.




5









 





          “Good Faith” shall mean a Person having acted in good faith and in a manner such
Person reasonably believed to be in or not opposed to the best interests of the Company, and, with
respect to a criminal proceeding, having had no reasonable cause to believe such Person’s conduct
was unlawful.




          “Governmental Entity” means the United States of America or any other nation, any
state or other political subdivision thereof, or any entity exercising executive, legislative,
judicial, regulatory or administrative functions of government, including any court, in each case,
having jurisdiction over the Company or any of its Subsidiaries or any of the property or other
assets of the Company or any of its Subsidiaries.




          “HSR Act” has the meaning set forth in Section 7.3(f).




          “Income” means individual items of Company income and gain determined in accordance
with the definitions of Net Income and Net Loss.




          “Loss” means individual items of Company loss and deduction determined in accordance
with the definitions of Net Income and Net Loss.




          “Managing Member” means FXCM Inc., a Delaware corporation, and any assignee to which
the managing member of the Company Transfers all Units and other Equity Securities held by such
managing member of the Company that is admitted to the Company as the managing member of the
Company, in its capacity as the managing member of the Company.




          “Member” means each Person listed on the Schedule of Members on the date hereof
(including the Managing Member) and each other Person who is hereafter admitted as a Member in
accordance with the terms of this Agreement or the Act. The Members shall constitute the
“members” (as such term is defined in the Act) of the Company. Any reference in this
Agreement to any Member shall include such Member’s Successors in Interest to the extent such
Successors in Interest have become Substituted Members in accordance with the provisions of this
Agreement. Except as otherwise set forth herein, the Members shall constitute a single class or
group of members of the Company for all purposes of the Act and this Agreement.




          “Member Nonrecourse Debt” has the meaning set forth for the term “partner
nonrecourse debt” in Treasury Regulations Section 1.704-2(b)(4).




          “Member Nonrecourse Debt Minimum Gain” has the meaning set forth in Treasury
Regulations Section 1.704-2(i)(2).




          “Member Nonrecourse Deduction” has the meaning set forth for the term “partner
nonrecourse deduction” in Treasury Regulations Section 1.704-2(i)(2).




          “Membership Interest” means, with respect to each Member, such Member’s economic
interest and rights as a Member.




          “Net Agreed Value” means, (a) in the case of any Contributed Property, the Agreed
Value of such property reduced by any liabilities either assumed by the Company upon such
contribution or to which such property is subject when contributed, and (b) in the case of




6









 




any property distributed to a Member by the Company, the Company’s Carrying Value of such
property (as adjusted pursuant to Section 3.3(d)(ii)) at the time such property is
distributed, reduced by any liabilities either assumed by such Member upon such distribution or to
which such property is subject at the time of distribution.




          “Net Income” means, for any taxable year, the excess, if any, of the Company’s items
of income and gain for such taxable year over the Company’s items of loss and deduction for such
taxable year. The items included in the calculation of Net Income shall be determined in
accordance with Section 3.3(b) and shall not include any items specially allocated under
Section 5.1(b).




          “Net Loss” means, for any taxable year, the excess, if any, of the Company’s items of
loss and deduction for such taxable year over the Company’s items of income and gain for such
taxable year. The items included in the calculation of Net Loss shall be determined in accordance
with Section 3.3(b) and shall not include any items specially allocated under Section
5.1(b).




          “Nonrecourse Deductions” means any and all items of loss, deduction, or expenditure
(including, without limitation, any expenditure described in Section 705(a)(2)(B) of the Code)
that, in accordance with the principles of Treasury Regulations Section 1.704-2(b), are
attributable to a Nonrecourse Liability.




          “Nonrecourse Liability” has the meaning set forth in Treasury Regulations Section
1.752-1(a)(2).




          “Officer” means each Person designated as an officer of the Company pursuant to and in
accordance with the provisions of Section 6.2, subject to any resolution of the Managing
Member appointing such Person as an officer of the Company or relating to such appointment.




          “Original Agreement” has the meaning set forth in the recitals hereof.




          “Person” means an individual, a partnership (including a limited partnership), a
corporation, a limited liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, association or other entity or a Governmental Entity.




          “Pledge” means pledge, grant a security interest in, create a lien on, assign the
right to receive distributions or proceeds from, or otherwise encumber, directly or indirectly, or
any act of the foregoing.




          “Proceeding” has the meaning set forth in Section 6.4.




          “Quarterly Estimated Tax Periods” means the two, three, and four calendar month
periods with respect to which Federal quarterly estimated tax payments are made. The first such
period begins on January 1 and ends on March 31. The second such period begins on April 1 and ends
on May 31. The third such period begins on June 1 and ends on August 31. The fourth such period
begins on September 1 and ends on December 31.




7









 





          “Required Allocations” means (a) any limitation imposed on any allocation of Net
Losses under Section 5.1(b) and (b) any allocation of an item of income, gain, loss or
deduction pursuant to Section 5.1(b)(i), 5.1(b)(ii), 5.1(b)(iii),
5.1(b)(vi) or 5.1(b)(viii).




          “Residual Gain” or “Residual Loss” means any item of gain or loss, as the case
may be, of the Company recognized for federal income tax purposes resulting from a sale, exchange
or other disposition of a Contributed Property or Adjusted Property, to the extent such item of
gain or loss is not allocated pursuant to Section 5.2(b)(i)(A) or 5.2(b)(ii)(A),
respectively, to eliminate Book-Tax Disparities.




          “Schedule of Members” has the meaning set forth in Section 3.1(b).




          “Second Amended and Restated Agreement” has the meaning set forth in the recitals
hereto.




          “Subsidiary” means, with respect to any Person, any corporation, limited liability
company, partnership, association or business entity of which (i) if a corporation, a majority of
the total voting power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity (other than a corporation), a majority of
partnership or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other business entity (other
than a corporation) if such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or shall control the
management of any such limited liability company, partnership, association or other business
entity. For purposes hereof, references to a “Subsidiary” of any Person shall be given
effect only at such times that such Person has one or more Subsidiaries and, unless otherwise
indicated, the term “Subsidiary” refers to a Subsidiary of the Company.




          “Substituted Member” means any Person that has been admitted to the Company as a
Member pursuant to Section 7.5 by virtue of such Person receiving all or a portion of a
Membership Interest from a Member or an Assignee and not from the Company.




          “Successor in Interest” means any (i) trustee, custodian, receiver or other Person
acting in any Bankruptcy or reorganization proceeding with respect to, (ii) assignee for the
benefit of the creditors of, (iii) trustee or receiver, or current or former officer, director or
partner, or other fiduciary acting for or with respect to the dissolution, liquidation or
termination of, or (iv) other executor, administrator, committee, legal representative or other
successor or assign of, any Member, whether by operation of law or otherwise.




          “Tax Distribution” has the meaning set forth in Section 4.4.




          “Tax Matters Member” has the meaning set forth in Section 8.4(d).




8









 





          “Tax Receivable Agreement” means the Tax Receivable Agreement, dated on or about the
date hereof, among the Managing Member and the Holdings Unitholders (as defined in the Exchange
Agreement) from time to time party thereto, as it may be amended or supplemented from time to time.




          “Transfer” means sell, assign, convey, contribute, give, or otherwise transfer,
whether directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, or
any act of the foregoing, but excludes Pledge or any act of Pledging. The terms
“Transferee,” “Transferor,” “Transferred,” “Transferring Member,”
“Transferor Member” and other forms of the word “Transfer” shall have the
correlative meanings.




          “Treasury Regulations” means the regulations, including temporary regulations,
promulgated by the United States Treasury Department under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding regulations).




          “Units” means the Class A Units and any other Class of limited liability company
interests in the Company denominated as “Units” that is established in accordance with this
Agreement, which shall constitute limited liability company interests in the Company as provided in
this Agreement and under the Act, entitling the holders thereof to the relative rights, title and
interests in the profits, losses, deductions and credits of the Company at any particular time as
set forth in this Agreement, and any and all other benefits to which a holder thereof may be
entitled as provided in this Agreement, together with the obligations of such Member to comply with
all terms and provisions of this Agreement.




          “Unrealized Gain” attributable to any item of Company property means, as of any date
of determination, the excess, if any, of (a) the fair market value of such property as of such date
(as determined under Section 3.3(d)) over (b) the Carrying Value of such property as of
such date (prior to any adjustment to be made pursuant to Section 3.3(d) as of such date).




          “Unrealized Loss” attributable to any item of Company property means, as of any date
of determination, the excess, if any, of (a) the Carrying Value of such property as of such date
(prior to any adjustment to be made pursuant to Section 3.3(d) as of such date) over (b)
the fair market value of such property as of such date (as determined under Section
3.3(d)).




          Section 1.2. Terms Generally. In this Agreement, unless otherwise specified or where the context otherwise requires:




          (a) the headings of particular provisions of this Agreement are inserted for convenience only
and will not be construed as a part of this Agreement or serve as a limitation or expansion on the
scope of any term or provision of this Agreement;




          (b) words importing any gender shall include other genders;




          (c) words importing the singular only shall include the plural and vice versa;




          (d) the words “include,” “includes” or “including” shall be deemed to be followed by the words
“without limitation”;




9









 





          (e) the words “hereof,” “herein” and “herewith” and words of similar import shall, unless
otherwise stated, be construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement;




          (f) references to “Articles,” “Exhibits,” “Sections” or “Schedules” shall be to Articles,
Exhibits, Sections or Schedules of or to this Agreement;




          (g) references to any Person include the successors and permitted assigns of such Person;




          (h) the use of the words “or,” “either” and “any” shall not be exclusive;




          (i) wherever a conflict exists between this Agreement and any other agreement among parties
hereto, this Agreement shall control but solely to the extent of such conflict;




          (j) references to “$” or “dollars” means the lawful currency of the United States of America;




          (k) references to any agreement, contract or schedule, unless otherwise stated, are to such
agreement, contract or schedule as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof; and




          (l) the parties hereto have participated collectively in the negotiation and drafting of this
Agreement; accordingly, in the event an ambiguity or question of intent or interpretation arises,
it is the intention of the parties that this Agreement shall be construed as if drafted
collectively by the parties hereto, and that no presumption or burden of proof shall arise favoring
or disfavoring any party hereto by virtue of the authorship of any provisions of this Agreement.




ARTICLE II




GENERAL PROVISIONS



          Section 2.1. Formation. The Company was formed as a Delaware limited liability company by the execution and filing
of the Certificate by an authorized person of the Company under and pursuant to the Act and the
execution of the Original Agreement. The Members agree to continue the Company as a limited
liability company under the Act, upon the terms and subject to the conditions set forth in this
Agreement. The rights, powers, duties, obligations and liabilities of the Members shall be
determined pursuant to the Act and this Agreement. To the extent that the rights, powers, duties,
obligations and liabilities of any Member are different by reason of any provision of this
Agreement than they would be in the absence of such provision, this Agreement shall, to the extent
permitted by the Act, control. The execution and filing of the Certificate and each amendment
thereto is hereby ratified, approved and confirmed by the Members.




          Section 2.2. Name. The name of the Company is “FXCM Holdings, LLC,” and all Company business shall be
conducted in that name or in such other names that comply with






10









 







applicable law as the Managing Member may select from time to time. Subject to the Act, the
Managing Member may change the name of the Company (and amend this Agreement to reflect such
change) at any time and from time to time without the consent of any other Person. Prompt
notification of any such change shall be given to all Members.




          Section 2.3. Section Term. The term of the Company commenced on the date the Certificate was filed with the office of
the Secretary of State of the State of Delaware and shall continue in existence perpetually until
termination in accordance with the provisions of Section 7.3(d) and the Act.




          Section 2.4. Purpose; Powers.




          (a) General Powers. The nature of the business or purposes to be conducted or
promoted by the Company is to engage in any lawful act or activity for which limited liability
companies may be formed under the Act. The Company may engage in any and all activities necessary,
desirable or incidental to the accomplishment of the foregoing. Notwithstanding anything herein to
the contrary, nothing set forth herein shall be construed as authorizing the Company to possess any
purpose or power, or to do any act or thing, forbidden by law to a limited liability company formed
under the laws of the State of Delaware.




          (b) Company Action. Subject to the provisions of this Agreement and except as
prohibited by the Act, (i) the Company may, with the approval of the Managing Member, enter into
and perform any and all documents, agreements and instruments, all without any further act, vote or
approval of any Member and (ii) the Managing Member may authorize any Person (including any Member
or Officer) to enter into and perform any document on behalf of the Company.




          Section 2.5. Existence and Good Standing; Foreign Qualification. The Managing Member may take all action which may be necessary or appropriate (i) for the
continuation of the Company’s valid existence as a limited liability company under the laws of the
State of Delaware (and of each other jurisdiction in which such existence is necessary to enable
the Company to conduct the business in which it is engaged) and (ii) for the maintenance,
preservation and operation of the business of the Company in accordance with the provisions of this
Agreement and applicable laws and regulations. The Managing Member may file or cause to be filed
for recordation in the office of the appropriate authorities of the State of Delaware, and in the
proper office or offices in each other jurisdiction in which the Company is formed or qualified,
such certificates (including certificates of limited liability companies and fictitious name
certificates) and other documents as are required by the applicable statutes, rules or regulations
of any such jurisdiction or as are required to reflect the identity of the Members and the amounts
of their respective capital contributions. The Managing Member may cause the Company to comply, to
the extent procedures are available and those matters are reasonably within the control of the
Officers, with all requirements necessary to qualify the Company as a foreign limited liability
company in any jurisdiction other than the State of Delaware.




          Section 2.6. Registered Office; Registered Agent; Principal Office; Other Offices. The registered office of the Company required by the Act to be maintained in the State of
Delaware shall be the office of the registered agent named in the Certificate or such other






11









 







office (which need not be a place of business of the Company) as the Managing Member may
designate from time to time in the manner provided by law. The registered agent of the Company in
the State of Delaware shall be the registered agent named in the Certificate or such other Person
or Persons as the Managing Member may designate from time to time in the manner provided by law.
The principal office of the Company shall be at such place as the Managing Member may designate
from time to time, which need not be in the State of Delaware, and the Company shall maintain
records at such place. The Company may have such other offices as the Managing Member may
designate from time to time.




          Section 2.7. No State Law Partnership. (a) The Members intend that the Company shall not be a partnership (including a limited
partnership) or joint venture, and that no Member or Officer shall be a partner or joint venturer
of any other Member or Officer by virtue of this Agreement, for any purposes other than as is set
forth in the last sentence of this Section 2.7(a), and this Agreement shall not be
construed to the contrary. The Members intend that the Company shall be treated as a partnership
for federal and, if applicable, state or local income tax purposes, and each Member, Assignee and
the Company shall file all tax returns and shall otherwise take all tax and financial reporting
positions in a manner consistent with such treatment.




          (b) So long as the Company is treated as a partnership for federal income tax purposes, to
ensure that Units are not traded on an established securities market within the meaning of Treasury
Regulations Section 1.7704-1(b) or readily tradable on a secondary market or the substantial
equivalent thereof within the meaning of Regulations Section 1.7704-1(c), notwithstanding anything
to the contrary contained herein,




               (i) the Company shall not participate in the establishment of any such market or the inclusion
of its Units thereon, and



               (ii) the Company shall not recognize any Transfer made on any such market by:




          (A) redeeming the Transferor Member (in the case of a redemption or repurchase
by the Company); or




          (B) admitting the Transferee as a Member or otherwise recognizing any rights of
the Transferee, such as a right of the Transferee to receive Company distributions
(directly or indirectly) or to acquire an interest in the capital or profits of the
Company.



          Section 2.8. Admission. The Managing Member is hereby admitted as a member of the Company upon its execution of a
counterpart signature page to this Agreement and each member of the Company immediately prior to
the effectiveness of this Agreement shall continue as a Member hereunder.







12









 








ARTICLE III




CAPITALIZATION



          Section 3.1. Units; Initial Capitalization; Schedules.




          (a) Limited Liability Company Interests. Interests in the Company shall be
represented by Units, or such other Equity Securities in the Company, or such other Company
securities, in each case as the Managing Member may establish in its sole discretion in accordance
with the terms hereof. As of the date hereof, the Units are comprised of one Class: “Class A
Units”.




          (b) Schedule of Units; Schedule of Members. The aggregate number of outstanding Units
and the aggregate amount of cash Capital Contributions that have been made by the Members and the
Fair Market Value of any property other than cash contributed by the Members with respect to the
Units (including, if applicable, a description and the amount of any liability assumed by the
Company or to which Contributed Property is subject) shall be set forth on a schedule maintained by
the Company. The Company shall also maintain a schedule setting forth the name and address of each
Member, the number of Units owned by such Member and the aggregate Capital Contributions that have
been made by such Member with respect to such Member’s Units (such schedule, the “Schedule of
Members”). The Schedule of Members shall be the definitive record of ownership of each Unit or
other Equity Security in the Company and all relevant information with respect to each Member. The
Company shall be entitled to recognize the exclusive right of a Person registered on its records as
the owner of Units or other Equity Securities in the Company for all purposes and shall not be
bound to recognize any equitable or other claim to or interest in Units or other Equity Securities
in the Company on the part of any other Person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the Act.




          (c) The Membership Interests (as defined in the Second Amended and Restated Agreement) issued
and outstanding immediately prior to the date of this Agreement are hereby converted into Class A
Units and each Member owns the number of Class A Units set forth opposite the name of such Member
in the Schedule of Members.




          Section 3.2. Authorization and Issuance of Additional Units.




          (a) The Managing Member may issue additional Class A Units and/or establish and issue other
Classes of Units, other Equity Securities in the Company or other Company securities from time to
time with such rights, obligations, powers, designations, preferences and other terms, which may be
different from, including senior to, any then existing or future Classes of Units, other Equity
Securities in the Company or other Company securities, as the Managing Member shall determine from
time to time, in its sole discretion, without the vote or consent of any other Member or any other
Person, including (i) the right of such Units, other Equity Securities in the Company or other
Company securities to share in Net Income and Net Loss or items thereof; (ii) the right of such
Units, other Equity Securities in the Company or other Company securities to share in Company
distributions; (iii) the rights of such Units, other Equity Securities or other Company securities
upon dissolution and liquidation of the Company;




13









 




(iv) whether, and the terms and conditions upon which, the Company may or shall be required to
redeem such Units, other Equity Securities in the Company or other Company securities (including
sinking fund provisions); (v) whether such Units, other Equity Securities in the Company or other
Company securities are issued with the privilege of conversion or exchange and, if so, the terms
and conditions of such conversion or exchange; (vi) the terms and conditions upon which such Units,
other Equity Securities in the Company or other Company securities will be issued, evidenced by
certificates or assigned or transferred; (vii) the terms and conditions of the issuance of such
Units, other Equity Securities in the Company or other Company securities (including, without
limitation, the amount and form of consideration, if any, to be received by the Company in respect
thereof, the Managing Member being expressly authorized, in its sole discretion, to cause the
Company to issue Units, other Equity Securities in the Company or other Company securities for less
than Fair Market Value); and (viii) the right, if any, of the holder of such Units, other Equity
Securities in the Company or other Company securities to vote on Company matters, including matters
relating to the relative designations, preferences, rights, powers and duties of such Units, other
Equity Securities in the Company or other Company securities. The Managing Member, without the vote
or consent of any other Member or any other Person, is authorized (i) to issue any Units, other
Equity Securities in the Company or other Company securities of any such newly established Class or
any existing Class and (ii) to amend this Agreement to reflect the creation of any such new Class,
the issuance of Units, other Equity Securities in the Company or other Company securities of such
Class, and the admission of any Person as a Member which has received Units or other Equity
Securities of any such Class, in accordance with Sections 3.2, 7.4 and 9.4. Except as
expressly provided in this Agreement to the contrary, any reference to “Units” shall include the
Class A Units and any other Classes of Units that may be established in accordance with this
Agreement.




          Section 3.3. Capital Accounts.




          (a) The Managing Member shall maintain for each Member owning Units a separate Capital Account
with respect to such Units in accordance with the rules of Treasury Regulations Section
1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital
Contributions made to the Company with respect to such Units pursuant to this Agreement and (ii)
all items of Company income and gain (including, without limitation, income and gain exempt from
tax) computed in accordance with Section 3.3(b) and allocated with respect to such Units
pursuant to Section 5.1, and decreased by (x) the amount of cash or Net Agreed Value of all
actual and deemed distributions of cash or property made with respect to such Units pursuant to
this Agreement and (y) all items of Company deduction and loss computed in accordance with
Section 3.3(b) and allocated with respect to such Units pursuant to Section 5.1.
The foregoing provisions and the other provisions of this Agreement relating to the maintenance of
Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b) and shall be
interpreted and applied in a manner consistent with such Treasury Regulations. In the event the
Managing Member shall determine that it is prudent to modify the manner in which the Capital
Accounts or any adjustments thereto (including, without limitation, adjustments relating to
liabilities which are secured by contributed or distributed property or which are assumed by the
Company or any Members) are computed in order to comply with such Treasury Regulations, the
Managing Member, without the consent of any other Person, may make such modification,
notwithstanding the terms of this Agreement, provided that it is not likely to have a material
effect on the amounts distributed to any Person pursuant to ARTICLE






14









 







VII hereof upon the dissolution of the Company. The Managing Member, without the
consent of any other Person, also shall (i) make any adjustments, notwithstanding the terms of this
Agreement, that are necessary or appropriate to maintain equality among the Capital Accounts of the
Members and the amount of capital reflected on the Company’s balance sheet, as computed for book
purposes, in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(q), and (ii) make any
appropriate modifications, notwithstanding the terms of this Agreement, in the event unanticipated
events might otherwise cause this Agreement not to comply with Treasury Regulations Section
1.704-1(b).




          (b) For purposes of computing the amount of any item of income, gain, loss or deduction, which
is to be allocated pursuant to ARTICLE V and is to be reflected in the Members’ Capital
Accounts, the determination, recognition and classification of any such item shall be the same as
its determination, recognition and classification for federal income tax purposes (including,
without limitation, any method of depreciation, cost recovery or amortization used for that
purpose), provided, that:




               (i) Solely for purposes of this Section 3.3, the Company shall be treated as owning
directly its proportionate share (as determined by the Managing Member) of all property owned by
any partnership, limited liability company, unincorporated business or other entity or arrangement
that is classified as a partnership for federal income tax purposes, of which the Company is,
directly or indirectly, a partner.



               (ii) Except as otherwise provided in Treasury Regulations Section 1.704-1(b)(2)(iv)(m), the
computation of all items of income, gain, loss and deduction shall be made without regard to any
election under Section 754 of the Code which may be made by the Company and, as to those items
described in Section 705(a)(1)(B) or 705(a)(2)(B) of the Code, without regard to the fact that such
items are not includable in gross income or are neither currently deductible nor capitalized for
federal income tax purposes. To the extent an adjustment to the adjusted tax basis of any Company
asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Treasury
Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts,
the amount of such adjustment in the Capital Accounts shall be treated as an item of gain or loss.



               (iii) Any income, gain or loss attributable to the taxable disposition of any Company property
shall be determined as if the adjusted basis of such property as of such date of disposition were
equal in amount to the Company’s Carrying Value with respect to such property as of such date.



               (iv) In accordance with the requirements of Section 704(b) of the Code, any deductions for
depreciation, cost recovery or amortization attributable to any Contributed Property shall be
determined in the manner described in Treasury Regulations Section 1.704-1(b)(2)(iv)(g)(3) as if
the adjusted basis of such property on the date it was acquired by the Company were equal to the
Agreed Value of such property. Upon an adjustment pursuant to Section 3.3(d) to the
Carrying Value of any Adjusted Property that is subject to depreciation, cost recovery or
amortization, any further deductions for such depreciation, cost recovery or amortization
attributable to such property shall be determined in the manner described in Treasury Regulations
Sections 1.704-1(b)(2)(iv)(g)(3) and 1.704-3(a)(6)(i) as if the adjusted



15









 




basis of such property were equal to the Carrying Value of such property immediately following
such adjustment; provided, however, that, if the asset has a zero adjusted basis for federal income
tax purposes, depreciation, cost recovery or amortization deductions shall be determined using any
method that the Managing Member may adopt.




          (c) A transferee of Units shall succeed to a pro rata portion of the Capital Account of the
transferor relating to the Units so transferred.




               (i) In accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(f), on an issuance of
additional Units for cash or Contributed Property and the issuance of Units as consideration for
the provision of services, the Capital Account of all Members and the Carrying Value of each
Company property immediately prior to such issuance shall be adjusted upward or downward to reflect
any Unrealized Gain or Unrealized Loss attributable to such Company property, as if such Unrealized
Gain or Unrealized Loss had been recognized on an actual sale of each such property immediately
prior to such issuance and had been allocated to the Members at such time pursuant to Section 6.1
in the same manner as a corresponding item of gain or loss actually recognized during such period
would have been allocated. In determining such Unrealized Gain or Unrealized Loss, the aggregate
cash amount and fair market value of all Company assets (including, without limitation, cash or
cash equivalents) immediately prior to the issuance of additional Units shall be determined by the
Managing Member using such method of valuation as it may adopt; provided, however, that the
Managing Member, in arriving at such valuation, must take fully into account the fair market value
of the Units of all Members at such time. The Managing Member shall allocate such aggregate value
among the assets of the Company (in such manner as it determines) to arrive at a fair market value
for individual properties.



               (ii) In accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(f), immediately prior
to any actual or deemed distribution to a Member of any Company property (other than a distribution
of cash that is not in redemption or retirement of a Unit), the Capital Accounts of all Members and
the Carrying Value of all Company property shall be adjusted upward or downward to reflect any
Unrealized Gain or Unrealized Loss attributable to such Company property, as if such Unrealized
Gain or Unrealized Loss had been recognized in a sale of such property immediately prior to such
distribution for an amount equal to its fair market value, and had been allocated to the Members,
at such time, pursuant to Section 5.1 in the same manner as a corresponding item of gain or loss
actually recognized during such period would have been allocated. In determining such Unrealized
Gain or Unrealized Loss, the aggregate cash amount and fair market value of all Company assets
(including, without limitation, cash or cash equivalents) immediately prior to a distribution shall
(A) in the case of an actual distribution that is not made pursuant to ARTICLE VII or in the case
of a deemed distribution, be determined and allocated in the same manner as that provided in
Section 3.3(d)(i) or (B) in the case of a liquidating distribution pursuant to ARTICLE VII, be
determined and allocated by the Person winding up the Company pursuant to Section 7.3(b) using such
method of valuation as it may adopt.



               (iii) The Managing Member may make the adjustments described in clause (i) above in the manner
set forth therein if the Managing Member determines that such adjustments are necessary or useful
to effectuate the intended economic arrangement among the



16









 




Members, including Members who received Units in connection with the performance of services
to or for the benefit of the Company.




          (d) Notwithstanding anything expressed or implied to the contrary in this Agreement, in the
event the Managing Member shall determine, in its sole and absolute discretion, that it is prudent
to modify the manner in which the Capital Accounts, or any debits or credits thereto, are computed
in order to effectuate the intended economic sharing arrangement of the Members, the Managing
Member may make such modification, notwithstanding any other provision hereof, without the consent
of any other Person.




          Section 3.4. No Withdrawal. No Person shall be entitled to withdraw any part of such Person’s Capital Contributions or
Capital Account or to receive any distribution from the Company, except as expressly provided
herein.




          Section 3.5. Loans From Members. Loans by Members to the Company shall not be considered Capital Contributions. If any
Member shall loan funds to the Company, then the making of such loans shall not result in any
increase in the Capital Account balance of such Member. The amount of any such loans shall be a
debt of the Company to such Member and shall be payable or collectible in accordance with the terms
and conditions upon which such loans are made.




          Section 3.6. No Right of Partition. To the fullest extent permitted by law, no Member shall have the right to seek or obtain
partition by court decree or operation of law of any property of the Company or any of its
Subsidiaries or the right to own or use particular or individual assets of the Company or any of
its Subsidiaries, or, except as expressly contemplated by this Agreement, be entitled to
distributions of specific assets of the Company or any of its Subsidiaries.




          Section 3.7. Non-Certification of Units; Legend; Units are Securities.




          (a) Units shall be issued in non-certificated form; provided that the Managing Member may
cause the Company to issue certificates to a Member representing the Units held by such Member.




          (b) If the Managing Member determines that the Company shall issue certificates representing
Units to any Member, the following provisions of this Section 3.7 shall apply:




               (i) The Company shall issue one or more certificates in the name of such Person in such form
as it may approve, subject to Section 3.7(b)(ii) (a “Membership Interest
Certificate”), which shall evidence the ownership of the Units represented thereby. Each such
Membership Interest Certificate shall be denominated in terms of the number of Units evidenced by
such Membership Interest Certificate and shall be signed by the Managing Member or an Officer on
behalf of the Company.



               (ii) Each Membership Interest Certificate shall bear a legend substantially in the following
form:



17









 






This certificate evidences a Class A Unit representing an interest in FXCM Holdings,
LLC and shall constitute a “security” within the meaning of, and shall be governed
by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15)
thereof) as in effect from time to time in the State of Delaware, and (ii) the
corresponding provisions of the Uniform Commercial Code of any other applicable
jurisdiction that now or hereafter substantially includes the 1994 revisions to
Article 8 thereof as adopted by the American Law Institute and the National
Conference of Commissioners on Uniform State Laws and approved by the American Bar
Association on February 14, 1995.




The interests in FXCM Holdings, LLC represented by this certificate are subject to
restrictions on transfer set forth in the Third Amended and Restated Limited
Liability Company Agreement of FXCM Holdings, LLC, dated as of      ,
2010, by and among each of the members from time to time party thereto, as the same
may be amended from time to time.



               (iii) Each Unit shall constitute a “security” within the meaning of, and shall be governed by,
(i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect
from time to time in the State of Delaware, and (ii) the corresponding provisions of the Uniform
Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes
the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National
Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on
February 14, 1995.



               (iv) The Company shall issue a new Membership Interest Certificate in place of any Membership
Interest Certificate previously issued if the holder of the Units represented by such Membership
Interest Certificate, as reflected on the books and records of the Company:




          (A) makes proof by affidavit, in form and substance satisfactory to the
Company, that such previously issued Membership Interest Certificate has been lost,
stolen or destroyed;




          (B) requests the issuance of a new Membership Interest Certificate before the
Company has notice that such previously issued Membership Interest Certificate has
been acquired by a purchaser for value in good faith and without notice of an
adverse claim;




          (C) if requested by the Company, delivers to the Company such security, in form
and substance satisfactory to the Company, as the Managing Member may direct, to
indemnify the Company against any claim that may be made on account of the alleged
loss, destruction or theft of the previously issued Membership Interest Certificate;
and




          (D) satisfies any other reasonable requirements imposed by the Company.



18









 





               (v) Upon a Member’s Transfer in accordance with the provisions of this Agreement of any or all
Units represented by a Membership Interest Certificate, the Transferee of such Units shall deliver
such Membership Interest Certificate, duly endorsed for Transfer by the Transferee, to the Company
for cancellation, and the Company shall thereupon issue a new Membership Interest Certificate to
such Transferee for the number of Units being Transferred and, if applicable, cause to be issued to
such Transferring Member a new Membership Interest Certificate for the number of Units that were
represented by the canceled Membership Interest Certificate and that are not being Transferred.



ARTICLE IV




DISTRIBUTIONS



          Section 4.1. Distributions. Distributions shall be made to the Members, after Tax Distributions are made pursuant to
Section 4.4 hereof, as and when determined by the Managing Member, in accordance with their
respective Units and pro rata as to Units of each Class.




          Section 4.2. Limitation. Notwithstanding any other provision of this Agreement, the Company, and the Managing Member
on behalf of the Company, shall not be required to make a distribution to any Member or Assignee if
such distribution would violate the Act or other applicable law.




          Section 4.3. Successors. For purposes of determining the amount of distributions under Section 4.1, each
Member shall be treated as having made the Capital Contributions and as having received the
distributions made to or received by its predecessors in respect of any of such Member’s Units.




          Section 4.4. Tax Distributions. Subject to Section 4.2 and to any restrictions contained in any agreement to which
the Company is bound, no later than the tenth day following the end of each Quarterly Estimated Tax
Period of each calendar year, the Company shall, to the extent of available cash and borrowings of
the Company, make a distribution in cash (each, a “Tax Distribution”), pro rata as to Units
of each Class, with respect to such Quarterly Estimated Tax Period, in an amount equal to the
excess of (i) the product of (x) the taxable income of the Company attributable to such Quarterly
Estimated Tax Period and all prior Quarterly Estimated Tax Periods in such calendar year, based
upon (I) the information returns filed by the Company, as amended or adjusted to date, and (II)
estimated amounts, in the case of periods for which the Company has not yet filed information
returns, multiplied by (y) the Assumed Tax Rate, over (ii) distributions made by the Company
pursuant to this Section 4.4 with respect to such calendar year. The Managing Member shall
use conventions similar to those adopted pursuant to Section 5.2(d) of this Agreement to
determine the interests of the Members in respect of each Class of Units with respect to a
Quarterly Estimated Tax Period. For the avoidance of doubt, Tax Distributions shall be made only
with respect to taxable income earned by the Company (as opposed to income recognized by any Member
with respect to the vesting of such Member’s Units). For purposes of clause (i)(x) above, the
taxable income of the Company shall be determined by disregarding any adjustment to the taxable
income of any Member that arises under Section 743(b) of the Code and is attributable to the
acquisition by






19









 







such Member of an interest in the Company in a transaction described in Section 743(a) of the
Code.




          Section 4.5. Tax Advances; Security Interest and Right of Set Off; Indemnification. (a) To the extent that the Company (or any entity in which the Company holds an interest)
is required by law to withhold or to make tax payments on behalf of or with respect to any Member
(e.g., withholding taxes), the Managing Member may withhold or escrow such amounts and make such
tax payments as so required. All taxes paid by or withheld from receipts of the Company that are
attributable to a Member (as reasonably determined by the Managing Member), including taxes
described in the preceding sentence, may be repaid in the sole discretion of the Managing Member by
reducing the amount of the current or future distribution or distributions, including distributions
during a winding up of the Company, which would otherwise have been made to such Member or, if such
distributions are not sufficient for that purpose, by so reducing the proceeds of liquidation of
the Company otherwise payable to such Member. For all other purposes of this Agreement such Member
shall be treated as having received all distributions (whether before or during the winding up of
the Company) unreduced by the amount of such taxes.




          (b) If the Company is required by law to make any payment to a Governmental Entity that is
specifically attributable to a Member or a Member’s status as such (including federal withholding
taxes, state or local personal property taxes and state or local unincorporated business taxes, to
the extent such taxes have not reduced amounts actually paid to a Member pursuant to Section
4.5(a)), then such Member shall indemnify the Company or its successor in interest in full for
the entire amount paid (including interest, penalties and reasonable related expenses). A Member’s
obligation to indemnify the Company or its successor in interest under this Section 4.5(b)
shall survive the dissolution, winding up and termination of the Company. The Company and its
successor in interest may pursue and enforce all rights and remedies it may have against each
Member under this Section 4.5(b), including instituting a lawsuit to collect such
indemnification, with interest calculated at a rate equal to 10 percent (but not in excess of the
highest rate per annum permitted by law). As security for any such indemnification obligation or
any other liability or obligation to which the Company may be subject as a result of any act or
status of any Member, or to which the Company may become subject with respect to the interest of
any Member in the Company, the Company shall have (and each Member hereby grants to the Company) a
security interest in all Distributable Assets distributable to such Member to the extent of the
amount of such liability or obligation. Whenever the Company is to pay any sum to any Member or
any Affiliate or related Person thereof pursuant to the terms of this Agreement, any amounts that
such Member or such Affiliate or related Person owes to the Company, whether pursuant to this
Section 4.5 or under any promissory note issued to the Company as partial payment for any
Units of the Company may be deducted from that sum before payment.




ARTICLE V




ALLOCATIONS



          Section 5.1. Allocations for Capital Account Purposes. (a) Except as otherwise provided in this Agreement, Net Income and Net Losses (and, to the
extent necessary, individual






20









 







items of income, gain or loss or deduction of the Company) shall be allocated in a manner such
that the Capital Account of each Member after giving effect to the Special Allocations set forth in
Section 5.1(b) is, as nearly as possible, equal (proportionately) to (i) the distributions
that would be made pursuant to Section 7.3 if the Company were dissolved, its affairs wound
up and its assets sold for cash equal to their Carrying Value, all Company liabilities were
satisfied (limited with respect to each non-recourse liability to the Carrying Value of the assets
securing such liability) and the net assets of the Company were distributed to the Members pursuant
to this Agreement, minus (ii) such Member’s share of Company Minimum Gain and Member Nonrecourse
Debt Minimum Gain, computed immediately prior to the hypothetical sale of assets.




          (b) Special Allocations. Notwithstanding any other provision of this Section
5.1, the following special allocations shall be made for such taxable period:




               (i) Company Minimum Gain Chargeback. Notwithstanding any other provision of this
Section 5.1, if there is a net decrease in Company Minimum Gain during any Company taxable
period, each Member shall be allocated items of Company income and gain for such period (and, if
necessary, subsequent periods) in the manner and amounts provided in Treasury Regulations Sections
1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i), or any successor provision. For purposes of
this Section 5.1(b), each Member’s Adjusted Capital Account balance shall be determined,
and the allocation of income and gain required hereunder shall be effected, prior to the
application of any other allocations pursuant to this Section 5.1(b) with respect to such
taxable period (other than an allocation pursuant to Section 5.1(b)(iii) and Section
5.1(b)(vi)). This Section 5.1(b)(i) is intended to comply with the Company Minimum
Gain chargeback requirement in Treasury Regulations Section 1.704-2(f) and shall be interpreted
consistently therewith.



               (ii) Chargeback of Member Nonrecourse Debt Minimum Gain. Notwithstanding the other
provisions of this Section 5.1 (other than Section 5.1(b)(i)), except as provided
in Treasury Regulations Section 1.704-2(i)(4), if there is a net decrease in Member Nonrecourse
Debt Minimum Gain during any Company taxable period, any Member with a share of Member Nonrecourse
Debt Minimum Gain at the beginning of such taxable period shall be allocated items of Company
income and gain for such period (and, if necessary, subsequent periods) in the manner and amounts
provided in Treasury Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any successor
provisions. For purposes of this Section 5.1(b), each Member’s Adjusted Capital Account
balance shall be determined, and the allocation of income and gain required hereunder shall be
effected, prior to the application of any other allocations pursuant to this Section
5.1(b), other than Section 5.1(b)(i) and other than an allocation pursuant to
Section 5.1(b)(i)(v) and (b)(i)(vi), with respect to such taxable period. This
Section 5.1(b)(ii) is intended to comply with the chargeback of items of income and gain
requirement in Treasury Regulations Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.



               (iii) Qualified Income Offset. In the event any Member unexpectedly receives any
adjustments, allocations or distributions described in Treasury Regulations Sections
1.704-1(b)(2)(ii)(d)(4), (5), or (6), items of Company income and gain shall be specially allocated
to such Member in an amount and manner sufficient to eliminate, to the extent required by the
Treasury Regulations promulgated under Section 704(b) of the Code, the deficit balance,




21











 




if any, in its Adjusted Capital Account created by such adjustments, allocations or distributions as quickly
as possible, unless such deficit balance is otherwise eliminated pursuant to Section
5.1(b)(i) or (ii). This Section 5.1(b)(iii) is intended to qualify and be
construed as a “qualified
income offset” within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.




               (iv) Gross Income Allocations. In the event any Member has a deficit balance in its
Capital Account at the end of any Company taxable period in excess of the sum of (A) the amount
such Member is required to restore pursuant to the provisions of this Agreement and (B) the amount
such Member is deemed obligated to restore pursuant to Treasury Regulations Sections 1.704-2(g) and
1.704-2(i)(5), such Member shall be specially allocated items of Company gross income and gain in
the amount of such excess as quickly as possible; provided, that an allocation pursuant to this
Section 5.1(b)(iv) shall be made only if and to the extent that such Member would have a
deficit balance in its Capital Account as adjusted after all other allocations provided for in this
Section 5.1 have been tentatively made as if this Section 5.1(b)(iv) were not in
this Agreement.



               (v) Nonrecourse Deductions. Nonrecourse Deductions for any taxable period shall be
allocated to the Members pro rata as to Units of each Class. If the Managing Member determines
that the Company’s Nonrecourse Deductions should be allocated in a different ratio to satisfy the
safe harbor requirements of the Treasury Regulations promulgated under Section 704(b) of the Code,
the Managing Member is authorized, upon notice to the other Members, to revise the prescribed ratio
to the numerically closest ratio that does satisfy such requirements.



               (vi) Member Nonrecourse Deductions. Member Nonrecourse Deductions for any taxable
period shall be allocated 100% to the Member that bears the “Economic Risk of Loss” (as
defined in the Treasury Regulations) with respect to the Member Nonrecourse Debt to which such
Member Nonrecourse Deductions are attributable in accordance with Treasury Regulations Section
1.704-2(i). If more than one Member bears the Economic Risk of Loss with respect to a Member
Nonrecourse Debt, such Member Nonrecourse Deductions attributable thereto shall be allocated
between or among such Members in accordance with the ratios in which they share such Economic Risk
of Loss.



               (vii) Nonrecourse Liabilities. Nonrecourse Liabilities of the Company described in
Treasury Regulations Section 1.752-3(a)(3) shall be allocated among the Members in the manner
chosen by the Managing Member and consistent with such Section of the Treasury Regulations.



               (viii) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax
basis of any Company asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant
to Treasury Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining
Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item
of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases
such basis), and such item of gain or loss shall be specially allocated to the Members in a manner
consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to
such Section of the Treasury Regulations.



22









 





               (ix) Curative Allocation.




          (1) The Required Allocations are intended to comply with certain requirements
of the Treasury Regulations. It is the intent of the Members that, to the extent
possible, all Required Allocations shall be offset either with other Required
Allocations or with special allocations of other items of Company income, gain, loss
or deduction pursuant to this Section 5.1(b)(ix)(1). Therefore,
notwithstanding any other provision of this ARTICLE V (other than the
Required Allocations), the Managing Member shall make such offsetting special
allocations of Company income, gain, loss or deduction in whatever manner it
determines appropriate so that, after such offsetting allocations are made, each
Member’s Capital Account balance is, to the extent possible, equal to the Capital
Account balance such Member would have had if the Required Allocations were not part
of this Agreement and all Company items were allocated pursuant to the economic
agreement among the Members.




          (2) The Managing Member shall, with respect to each taxable period, (1) apply
the provisions of Section 5.1(b)(ix)(1) in whatever order is most likely to
minimize the economic distortions that might otherwise result from the Required
Allocations, and (2) divide all allocations pursuant to Section
5.1(b)(ix)(1) among the Members in a manner that is likely to minimize such
economic distortions.



               (x) Deficit Capital Accounts. No Member shall be required to pay to the Company, to
any other Member or to any third party any deficit balance which may exist from time to time in the
Member’s Capital Account.



          Section 5.2. Allocations for Tax Purposes.




          (a) The income, gains, losses and deductions of the Company shall be allocated for federal,
state and local income tax purposes among the Members in accordance with the allocation of such
income, gains, losses and deductions among the Members for purposes of computing their Capital
Accounts; except that if any such allocation is not permitted by the Code or other applicable law,
then the Company’s subsequent income, gains, losses and deductions for tax purposes shall be
allocated among the Members so as to reflect as nearly as possible the allocation set forth herein
in computing their Capital Accounts.




          (b) In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property or
an Adjusted Property, items of income, gain, loss, depreciation, amortization and cost recovery
deductions shall be allocated for federal income tax purposes among the Members as follows:




               (i) (A) In the case of a Contributed Property, such items attributable thereto shall be
allocated among the Members in the manner provided under Section 704(c) of the Code that takes into
account the variation between the Agreed Value of such property and its adjusted basis at the time
of contribution; and (B) any item of Residual Gain or Residual Loss



23









 







attributable to a Contributed Property shall be allocated among the Members in the same manner
as its correlative item of “book” gain or loss is allocated pursuant to Section 5.1.



               (ii) (A) In the case of an Adjusted Property, such items shall (1) first, be allocated among
the Members in a manner consistent with the principles of Section 704(c) of the Code to take into
account the Unrealized Gain or Unrealized Loss attributable to such property and the allocations
thereof pursuant to Section 3.3(d)(i) or Section 3.3(d)(ii), and (2) second, in the
event such property was originally a Contributed Property, be allocated among the Members in a
manner consistent with Section 5.2(b)(i)(A); and (B) any item of Residual Gain or Residual
Loss attributable to an Adjusted Property shall be allocated among the Members in the same manner
as its correlative item of “book” gain or loss is allocated pursuant to Section 5.1.



               (iii) In order to eliminate Book-Tax Disparities, the Managing Member may cause the Company to
use any method described in Treasury Regulations Section 1.704-3; provided that the Managing Member
shall cause the Company to use the “traditional method” with respect to any Book-Tax Disparities
that exist as of the date hereof.



          (c) For the proper administration of the Company, the Managing Member shall (i) adopt such
conventions as it deems appropriate in determining the amount of depreciation, amortization and
cost recovery deductions; (ii) make special allocations for federal income tax purposes of income
(including, without limitation, gross income) or deductions; (iii) without the consent of any other
Person being required, amend the provisions of this Agreement as appropriate to reflect the
proposal or promulgation of Treasury Regulations under Section 704(b) or Section 704(c) of the
Code; and (iv) adopt and employ such methods for (A) the maintenance of capital accounts for book
and tax purposes, (B) the determination and allocation of adjustments under Sections 704(c), 734
and 743 of the Code, (C) the determination and allocation of taxable income, tax loss and items
thereof under this Agreement and pursuant to the Code, (D) the determination of the identities and
tax classification of Members, (E) the provision of tax information and reports to the Members, (F)
the adoption of reasonable conventions and methods for the valuation of assets and the
determination of tax basis, (G) the allocation of asset values and tax basis, (H) the adoption and
maintenance of accounting methods, (I) the recognition of the transfer of Units and (J) tax
compliance and other tax-related requirements, including without limitation, the use of computer
software, as it determines in its sole discretion are necessary and appropriate to execute the
provisions of this Agreement and to comply with federal, state and local tax law. The Managing
Member may adopt such conventions, make such allocations and make such amendments to this Agreement
as provided in this Section 5.2(c) only if such conventions, allocations or amendments
would not have a material adverse effect on the Members, the holders of any Class or Classes of
Units issued and outstanding or the Company, and if such allocations are consistent with the
principles of Section 704 of the Code.



          (d) For purposes of determining the items of Company income, gain, loss, deduction, or credit
allocable to any Member with respect to any period, such items shall be determined on a daily,
monthly, or other basis, as determined by the Managing Member using any permissible method under
Code Section 706 and the Treasury Regulations promulgated thereunder.



24









 





          (e) Tax credits, tax credit recapture and any items related thereto shall be allocated to the
Members according to their interests in such items as reasonably determined by the Managing Member
taking into account the principles of Treasury Regulations Sections 1.704-1(b)(4)(ii) and
1.704-1T(b)(4)(xi).



          (f) Allocations pursuant to this Section 5.2 are solely for the purposes of federal,
state and local taxes and shall not affect, or in any way be taken into account in computing, any
Member’s Capital Account or share of Income, Loss, distributions or other Company items pursuant to
any provision of this Agreement.



          Section 5.3. Members’ Tax Reporting. The Members acknowledge and are aware of the income tax consequences of the allocations
made pursuant to this ARTICLE V and, except as may otherwise be required by applicable law
or regulatory requirements, hereby agree to be bound by the provisions of this ARTICLE V in
reporting their shares of Company income, gain, loss, deduction and credit for federal, state and
local income tax purposes.



          Section 5.4. Certain Costs and Expenses. The Company shall (i) pay, or cause to be paid, all costs, fees, operating expenses and
other expenses of the Company (including the costs, fees and expenses of attorneys, accountants or
other professionals and the compensation of all personnel providing services to the Company)
incurred in pursuing and conducting, or otherwise related to, the activities of the Company, and
(ii) in the sole discretion of the Managing Member, bear and/or reimburse the Managing Member for
any costs, fees or expenses incurred by it in connection with serving as the Managing Member. To
the extent that the Managing Member determines in its sole discretion that such expenses are
related to the business and affairs of the Managing Member that are conducted through the Company
and/or its subsidiaries (including expenses that relate to the business and affairs of the Company
and/or its subsidiaries and that also relate to other activities of the Managing Member), the
Managing Member may cause the Company to pay or bear all expenses of the Managing Member,
including, without suggesting any limitation of any kind, costs of securities offerings not borne
directly by Members, board of directors compensation and meeting costs, cost of periodic reports to
its stockholders, litigation costs and damages arising from litigation, accounting and legal costs
and franchise taxes, provided that the Company shall not pay or bear any income tax obligations of
the Managing Member.



ARTICLE VI




MANAGEMENT



          Section 6.1. Managing Member; Delegation of Authority and Duties.



          (a) Authority of Managing Member. The business, property and affairs of the Company
shall be managed under the sole, absolute and exclusive direction of the Managing Member, which may
from time to time delegate authority to Officers or to others to act on behalf
of the Company. Without limiting the foregoing provisions of this Section 6.1(a), the
Managing Member shall have the sole power to manage or cause the management of the Company,
including, without limitation, the power and authority to effectuate the sale, lease, transfer,
exchange or other disposition of any, all or substantially all of the assets of the Company



25









 







(including, but not limited to, the exercise or grant of any conversion, option, privilege or
subscription right or any other right available in connection with any assets at any time held by
the Company) or the merger, consolidation, reorganization or other combination of the Company with
or into another entity.



          (b) Other Members. No Member who is not also a Managing Member, in his or her or its
capacity as such, shall participate in or have any control over the business of the Company. Except
as expressly provided herein, the Units, other Equity Securities in the Company, or the fact of a
Member’s admission as a member of the Company do not confer any rights upon the Members to
participate in the management of the affairs of the Company. Except as expressly provided herein,
no Member who is not also a Managing Member shall have any right to vote on any matter involving
the Company, including with respect to any merger, consolidation, combination or conversion of the
Company, or any other matter that a Member might otherwise have the ability to vote or consent with
respect to under the Act, at law, in equity or otherwise. The conduct, control and management of
the Company shall be vested exclusively in the Managing Member. In all matters relating to or
arising out of the conduct of the operation of the Company, the decision of the Managing Member
shall be the decision of the Company. Except as required law, or expressly provided in Section
6.1(c) or by separate agreement with the Company, no Member who is not also a Managing Member
(and acting in such capacity) shall take any part in the management or control of the operation or
business of the Company in its capacity as a Member, nor shall any Member who is not also a
Managing Member (and acting in such capacity) have any right, authority or power to act for or on
behalf of or bind the Company in his or her or its capacity as a Member in any respect or assume
any obligation or responsibility of the Company or of any other Member.



          (c) Delegation by Managing Member. The Company may employ one or more Members from
time to time, and such Members, in their capacity as employees or agents of the Company (and not,
for clarity, in their capacity as Members of the Company), may take part in the control and
management of the business of the Company to the extent such authority and power to act for or on
behalf of the Company has been delegated to them by the Managing Member. To the fullest extent
permitted by law, the Managing Member shall have the power and authority to delegate to one or more
other Persons the Managing Member’s rights and powers to manage and control the business and
affairs of the Company, including to delegate to agents and employees of a Member or the Company
(including Officers), and to delegate by a management agreement or another agreement with, or
otherwise to, other Persons. The Managing Member may authorize any Person (including any Member or
Officer) to enter into and perform any document on behalf of the Company.



          Section 6.2. Officers.



          (a) Designation and Appointment. The Managing Member may, from time to time, employ
and retain Persons as may be necessary or appropriate for the conduct of the Company’s business,
including employees, agents and other Persons (any of whom may be a Member) who may be designated
as Officers of the Company, with such titles as and to the extent authorized by the Managing
Member. Any number of offices may be held by the same Person. In its discretion, the Managing
Member may choose not to fill any office for any period as it may deem advisable. Officers need
not be residents of the State of Delaware or Members.



26









 







Any Officers so designated shall have such
authority and perform such duties as the Managing Member may from time to time delegate to them.
The Managing Member may assign titles to particular Officers. Each Officer shall hold office until
his successor shall be duly designated and shall qualify or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided. The salaries or other
compensation, if any, of the Officers of the Company shall be fixed from time to time by the
Managing Member. Designation of an Officer shall not of itself create any employment or, except as
provided in Section 6.4, contractual rights.



          (b) Resignation and Removal. Any Officer may resign as such at any time. Such
resignation shall be made in writing and shall take effect at the time specified therein,
or if no time is specified, at the time of its receipt by the Managing Member. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so provided in the
resignation. All employees, agents and Officers shall be subject to the supervision and direction
of the Managing Member and may be removed, with or without cause, from such office by the Managing
Member and the authority, duties or responsibilities of any employee, agent or Officer of the
Company may be suspended or altered by the Managing Member from time to time, in each case in the
sole discretion of the Managing Member.



          (c) Duties of Officers. The Officers, in the performance of their duties as such,
shall owe to the Company duties of loyalty and due care of the type owed by officers of a Delaware
corporation pursuant to the laws of the state of Delaware.



          Section 6.3. Liability of Members.



          (a) No Personal Liability. Except as otherwise required by applicable law and as
expressly set forth in this Agreement, no Member shall have any personal liability whatsoever in
such Person’s capacity as a Member, whether to the Company, to any of the other Members, to the
creditors of the Company or to any other third party, for the debts, liabilities, commitments or
any other obligations of the Company or for any losses of the Company. Except as otherwise
required by the Act, each Member shall be liable only to make such Member’s Capital Contribution to
the Company, if applicable, and the other payments provided for expressly herein.



          (b) Return of Distributions. In accordance with the Act and the laws of the State of
Delaware, a Member may, under certain circumstances, be required to return amounts previously
distributed to such Member. It is the intent of the Members that no distribution to any Member
pursuant to ARTICLE IV shall be deemed a return of money or other property paid or
distributed in violation of the Act. The payment of any such money or distribution of any such
property to a Member shall be deemed to be a compromise within the meaning of Section
18-502(b) of the Act, and, to the fullest extent permitted by law, any Member receiving any such
money or property shall not be required to return any such money or property to the Company or any
other Person. However, if any court of competent jurisdiction holds that, notwithstanding the
provisions of this Agreement, any Member is obligated to make any such payment, such obligation
shall be the obligation of such Member and not of any other Member.



          (c) No Duties. Notwithstanding any other provision of this Agreement or any duty
otherwise existing at law, in equity or otherwise, the parties hereby agree that the Members



27









 







(including without limitation, the Managing Member), shall, to the maximum extent permitted by law,
including Section 18-1101(c) of the Act, owe no duties (including fiduciary duties) to the Company,
the other Members or any other Person who is a party to or otherwise bound by this Agreement;
provided, however, that nothing contained in this Section 6.3(c) shall eliminate the
implied contractual covenant of good faith and fair dealing. To the extent that, at law or in
equity, any Member (including without limitation, the Managing Member) has duties (including
fiduciary duties) and liabilities relating thereto to the Company, to another Member or to another
Person who is a party to or otherwise bound by this Agreement, the Members (including without
limitation, the Managing Member) acting under this Agreement will not be liable to the Company, to
any such other Member or to any such other Person who is a party to or otherwise bound by this
Agreement, for their good faith reliance on the provisions of this Agreement. The provisions of
this Agreement, to the extent that they restrict or eliminate the duties and liabilities relating
thereto of any Member (including without limitation, the Managing Member) otherwise existing at
law, in equity or otherwise, are agreed by the parties hereto to replace to that extent such other
duties and liabilities of the Members (including without limitation, the Managing Member) relating
thereto. The Managing Member may consult with legal counsel, accountants and financial or other
advisors and any act or omission suffered or taken by the Managing Member on behalf of the Company
or in furtherance of the interests of the Company in good faith in reliance upon and in accordance
with the advice of such counsel, accountants or financial or other advisors will be full
justification for any such act or omission, and the Managing Member will be fully protected in so
acting or omitting to act so long as such counsel or accountants or financial or other advisors
were selected with reasonable care. Notwithstanding any other provision of this Agreement or
otherwise applicable provision of law or equity, whenever in this Agreement the Managing Member is
permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a
grant of similar authority or latitude, the Managing Member shall be entitled to consider only such
interests and factors as it desires, including its own interests, and shall, to the fullest extent
permitted by applicable law, have no duty or obligation to give any consideration to any interest
of or factors affecting the Company or the other Members, or (ii) in its “good faith” or under
another expressed standard, the Managing Member shall act under such express standard and shall not
be subject to any other or different standards.



          Section 6.4. Indemnification by the Company. Subject to the limitations and conditions provided in this Section 6.4, each Person
who was or is made a party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
arbitrative (each, a “Proceeding”), or any appeal in such a Proceeding or any
inquiry or investigation that could lead to such a Proceeding, by reason of the fact that he,
she or it, or a Person of which he, she or it is the legal representative, is or was a Member
(including without limitation, the Managing Member) or an Officer (each, an “Indemnified
Person”), in each case, shall be indemnified by the Company to the fullest extent permitted by
applicable law, as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide broader
indemnification rights than such law permitted the Company to provide prior to such amendment)
against all judgments, penalties (including excise and similar taxes and punitive damages), fines,
settlements and reasonable expenses (including reasonable attorneys’ fees and expenses) actually
incurred by such Indemnified Person in connection with such Proceeding, appeal, inquiry or
investigation, if such Indemnified Person acted in Good



28









 







Faith. Reasonable expenses incurred by an
Indemnified Person who was, is or is threatened to be made a named defendant or respondent in a
Proceeding shall be paid by the Company in advance of the final disposition of the Proceeding upon
receipt of an undertaking by or on behalf of such Person to repay such amount if it shall
ultimately be determined that he, she or it is not entitled to be indemnified by the Company.
Indemnification under this Section 6.4 shall continue as to a Person who has ceased to
serve in the capacity which initially entitled such Person to indemnity hereunder. The rights
granted pursuant to this Section 6.4 shall be deemed contract rights, and no amendment,
modification or repeal of this Section 6.4 shall have the effect of limiting or denying any
such rights with respect to actions taken or Proceedings, appeals, inquiries or investigations
arising prior to any amendment, modification or repeal. It is expressly acknowledged that the
indemnification provided in this Section 6.4 could involve indemnification for negligence
or under theories of strict liability. Notwithstanding the foregoing, no Indemnified Person shall
be entitled to any indemnity or advancement of expenses in connection with any Proceeding brought
(i) by such Indemnified Person against the Company (other than to enforce the rights of such
Indemnified Person pursuant to this Section 6.4), any Member or any Officer, or (ii) by or
in the right of the Company, without the prior written consent of the Managing Member.



          Section 6.5. Investment Representations of Members. Each Member hereby represents, warrants and acknowledges to the Company that: (a) such
Member has such knowledge and experience in financial and business matters and is capable of
evaluating the merits and risks of an investment in the Company and is making an informed
investment decision with respect thereto; (b) such Member is acquiring interests in the Company for
investment only and not with a view to, or for resale in connection with, any distribution to the
public or public offering thereof; and (c) the execution, delivery and performance of this
Agreement have been duly authorized by such Member.



ARTICLE VII




WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS; ADMISSION OF NEW MEMBERS



          Section 7.1. Member Withdrawal. No Member shall have the power or right to withdraw or otherwise resign or be expelled from
the Company prior to the dissolution and winding up of the Company except pursuant to a Transfer
permitted under this Agreement.



          Section 7.2. Bankruptcy. Notwithstanding any other provision of this Agreement, the Bankruptcy of a Member shall not
cause such Member to cease to be a member of the Company and upon the occurrence of such an event,
the Company shall continue without dissolution.



          Section 7.3. Dissolution.



          (a) Events. The Company shall be dissolved and its affairs shall be wound up on the
first to occur of (i) the determination of the Managing Member, (ii) the entry of a decree of
judicial dissolution of the Company under Section 18-802 of the Act or (iii) the termination of the
legal existence of the last remaining Member or the occurrence of any other event which



29









 







terminates
the continued membership of the last remaining Member in the Company unless the Company is
continued without dissolution in a manner permitted by the Act. In the event of a dissolution
pursuant to clause (i) of the immediately preceding sentence, the relative economic rights of each
Class of Units immediately prior to such dissolution shall be preserved to the greatest extent
practicable with respect to distributions made to Members pursuant to Section 7.3(c) below
in connection with the winding up of the Company, taking into consideration tax and other legal
constraints that may adversely affect one or more parties hereto and subject to compliance with
applicable laws and regulations, unless, with respect to any Class of Units, holders of not less
than 90% of the Units of such Class consent in writing to a treatment other than as described
above.



          (b) Actions Upon Dissolution. When the Company is dissolved, the business and
property of the Company shall be wound up and liquidated by the Managing Member or, in the event of
the unavailability of the Managing Member or if the Managing Member shall so determine, such Member
or other liquidating trustee as shall be named by the Managing Member.



          (c) Priority. A reasonable time shall be allowed for the orderly winding up of the
business and affairs of the Company and the liquidation of its assets pursuant to this Section
7.3 to minimize any losses otherwise attendant upon such winding up. Upon dissolution of the
Company, the assets of the Company shall be applied in the following manner and order of priority:
(i) to creditors, including Members who are creditors, to the extent otherwise permitted by law, in
satisfaction of liabilities of the Company (including all contingent, conditional or unmatured
claims), whether by payment or the making of reasonable provision for payment thereof; and (ii) the
balance shall be distributed to the Members in accordance with their respective Units pro rata as
to Units of each Class.



          (d) Cancellation of Certificate. The Company shall terminate when (i) all of the
assets of the Company, after payment of or due provision for all debts liabilities and obligations
of the Company, shall have been distributed to the Members in the manner provided
for in this Agreement and (ii) the Certificate shall have been canceled in the manner required
by the Act.



          (e) Return of Capital. The liquidators of the Company shall not be personally liable
for the return of Capital Contributions or any portion thereof to the Members (it being understood
that any such return shall be made solely from Company assets).



          (f) Hart Scott Rodino. Notwithstanding any other provision in this Agreement, in the
event the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”),
is applicable to any Member by reason of the fact that any assets of the Company will be
distributed to such Member in connection with the dissolution of the Company, the distribution of
any assets of the Company shall not be consummated until such time as the applicable waiting
periods (and extensions thereof) under the HSR Act have expired or otherwise been terminated with
respect to each such Member.



          Section 7.4. Transfer by Members. No Member may Transfer or Pledge all or any portion of its Units or other interests or
rights in the Company except with the written



30









 







consent of the Managing Member, which consent may be
provided or withheld, or subject to conditions, in the sole discretion of the Managing Member;
provided, however, that, subject to the provisions of Section 7.5(c) (other than the provisions of
Section 7.5(c)(v) to the extent that such provisions relate to the delivery of legal and/or tax
opinions), without the consent of the Managing Member, a Member may, at any time, Transfer any of
such Member’s Units pursuant to the Exchange Agreement. In addition, to the extent that the
Managing Member determines in Good Faith that a proposed Transfer would not violate Section 7.5(c)
below, then the Managing Member will not unreasonably withhold its consent to a Transfer (i) in the
case of any Member who is a natural Person, (A) upon the death of such Member pursuant to
applicable laws of descent and distribution or (B) to or among such Person’s spouse and descendants
(whether natural or adopted) and any trust, partnership, limited liability company or similar
vehicle established solely for the benefit of (or the sole members or partners of which are) such
Person, such Person’s spouse and/or descendants, or (ii) to and among wholly owned Subsidiaries of
any Member, provided, however, that if any such wholly owned Subsidiary will subsequently cease to
be wholly owned by such Member, the Units so Transferred must first be Transferred back to the
original Member or another permitted Transferee of such original Member. For the avoidance of
doubt, it shall not be unreasonable for the Managing Member to impose reasonable restrictions on
the number of Persons to whom a Member may make Transfers pursuant to clauses (i) and (ii) of the
preceding sentence, which restrictions need not be uniform among holders of interests in the
Company. Any purported Transfer or Pledge of all or a portion of a Member’s Units or other
interests in the Company not complying with this Section 7.4 shall be void and shall not create any
obligation on the part of the Company or the other Members to recognize that Transfer or Pledge or
to deal with the Person to which the Transfer or Pledge purportedly was made.



          Section 7.5. Admission or Substitution of New Members.



          (a) Admission. Without the consent of any other Person, the Managing Member shall
have the right to admit as a Substituted Member or an Additional Member, any Person who acquires an
interest in the Company, or any part thereof, from a Member or an Assignee or from the Company.
Concurrently with the admission of a Substituted Member or an Additional Member, the Managing
Member shall forthwith (i) amend the Schedule of Members to reflect the name and address of such
Substituted Member or Additional Member and to eliminate or modify, as applicable, the name and
address of the Transferring Member with regard to the Transferred Units and (ii) cause any
necessary papers to be filed and recorded and notice to be given wherever and to the extent
required showing the substitution of a Transferee as a Substituted Member in place of the
Transferring Member, or the admission of an Additional Member, in each case, at the expense,
including payment of any professional and filing fees incurred, of such Substituted Member or
Additional Member; provided that such expenses shall not be payable with respect to a Substituted
Member or Additional Member that is or is to become an employee of the Company or any of its
Subsidiaries, where the issuance or Transfer of an interest in the Company to such Person is in
connection with their provision of services to the Company or any of its Subsidiaries.



          (b) Conditions and Limitations. The admission of any Person as a Substituted Member
or an Additional Member shall be conditioned upon (i) such Person’s written acceptance and adoption
of all the terms and provisions of this Agreement, either by (A)



31









 







execution and delivery of a
counterpart signature page to this Agreement countersigned by the Managing Member on behalf of the
Company or (B) any other writing evidencing the intent of such Person to become a Substituted
Member or an Additional Member and such writing is accepted by the Managing Member on behalf of the
Company.



          (c) Prohibited Transfers. Notwithstanding any contrary provision in this Agreement,
in no event may any Transfer of a Unit or other interest in the Company be made by any Member or
Assignee if:




          (i) such Transfer is made to any Person who lacks the legal right, power or capacity to
own such Unit or other interest in the Company;




          (ii) such Transfer would pose a material risk that the Company would be a “publicly
traded partnership” as defined in Section 7704 of the Code;




          (iii) such Transfer would require the registration of such transferred Unit or other
interest in the Company or of any Class of Unit or other interest in the Company pursuant to
any applicable United States federal or state securities laws (including, without
limitation, the Securities Act or the Securities Exchange Act of 1934, as amended) or other
non-U.S. securities laws (including Canadian provincial or territorial securities laws) or
would constitute a non-exempt distribution pursuant to applicable provincial or state
securities laws;




          (iv) such Transfer would cause any portion of the assets of the Company to become “plan
assets” of any “benefit plan investor” within the meaning of regulations issued by the U.S.
Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the Code
of Federal Regulations as modified by Section 3(42)
of the Employee Retirement Income Security Act of 1974, as amended from time to time;
or




          (v) to the extent requested by the Managing Member, the Company does not receive such
legal and/or tax opinions and written instruments (including, without limitation, copies of
any instruments of Transfer and such Assignee’s consent to be bound by this Agreement as an
Assignee) that are in a form satisfactory to the Managing Member, as determined in the
Managing Member’s sole discretion.



          In addition, notwithstanding any contrary provision in this Agreement, to the extent the
Managing Member shall determine that interests in the Company do not meet the requirements of
Treasury Regulation section 1.7704-1(h), the Managing Member may impose such restrictions on the
Transfer of Units or other interests in the Company as the Managing Member may determine to be
necessary or advisable so that the Company is not treated as a publicly traded partnership taxable
as a corporation under Section 7704 of the Code.



          Any Transfer in violation of Section 7.4 or this Section 7.5(c) shall be null
and void ab initio and of no effect.



          (d) Effect of Transfer to Substituted Member. Following the Transfer of any Unit or
other interest in the Company that is permitted under Sections 7.4 and 7.5, the Transferee



32









 







of such Unit or other interest in the Company shall be treated as having made all of the Capital
Contributions in respect of, and received all of the distributions received in respect of, such
Unit or other interest in the Company, shall succeed to the Capital Account balance associated with
such Unit or other interest in the Company, shall receive allocations and distributions under
ARTICLE IV and ARTICLE V in respect of such Unit or other interest in the Company
and, if admitted as such in accordance with Section 7.5, otherwise shall become a Substituted
Member entitled to all the rights of a Member with respect to such Unit or other interest in the
Company.



          Section 7.6. Additional Requirements. Notwithstanding any contrary provision in this Agreement, for the avoidance of doubt, the
Managing Member may impose such vesting requirements, forfeiture provisions, Transfer restrictions,
minimum retained ownership requirements or other similar provisions with respect to any interests
in the Company that are outstanding as of the date of this Agreement or are created hereafter, with
the written consent of the holder of such interests in the Company. Such requirements, provisions
and restrictions need not be uniform among holders of interests in the Company and may be waived or
released by the Managing Member in its sole discretion with respect to all or a portion of the
interests in the Company owned by any one or more Members or Assignees at any time and from time to
time, and such actions or omissions by the Managing Member shall not constitute the breach of this
Agreement or of any duty hereunder or otherwise existing at law, in equity or otherwise.



          Section 7.7. Mandatory Exchange. The Managing Member may, with the consent of those Members (other than the Managing Member)
holding not less than 75% of the Holdings Units (as such term is defined in the Exchange Agreement)
(excluding any Holdings Units held by the Managing Member)
require all Members holding Holdings Units to exchange all such units held by them pursuant to
the Exchange Agreement.



ARTICLE VIII




BOOKS AND RECORDS; FINANCIAL STATEMENTS AND OTHER INFORMATION; TAX MATTERS



          Section 8.1. Books and Records. The Company shall keep at its principal executive office (i) correct and complete books and
records of account (which, in the case of financial records, shall be kept in accordance with
GAAP), (ii) minutes of the proceedings of meetings of the Members, (iii) a current list of the
directors and officers of the Company and its Subsidiaries and their respective residence
addresses, and (iv) a record containing the names and addresses of all Members, the total number of
Units held by each Member, and the dates when they respectively became the owners of record
thereof. Any of the foregoing books, minutes or records may be in written form or in any other
form capable of being converted into written form within a reasonable time. Except as expressly set
forth in this Agreement, notwithstanding the rights set forth in Section 18-305 of the Act, no
Member shall have the right to obtain information from the Company.



          Section 8.2. Information.



          (a) The Members shall be supplied with all other Company information necessary to enable each
Member to prepare its federal, state, and local income tax returns.



33









 





          (b) All determinations, valuations and other matters of judgment required to be made for
ordinary course accounting purposes under this Agreement shall be made by the Managing Member and
shall be conclusive and binding on all Members, their Successors in Interest and any other Person
who is a party to or otherwise bound by this Agreement, and to the fullest extent permitted by law
or as otherwise provided in this Agreement, no such Person shall have the right to an accounting or
an appraisal of the assets of the Company or any successor thereto.



          Section 8.3. Fiscal Year. The Fiscal Year of the Company shall be the calendar year ending on December 31, unless
otherwise determined by the Managing Member in its sole discretion in accordance with Section 706
of the Code.



          Section 8.4. Certain Tax Matters.



          (a) Preparation of Returns. The Managing Member shall cause to be prepared all
federal, state and local tax returns of the Company for each year for which such returns are
required to be filed and shall cause such returns to be timely filed. The Managing Member
shall determine the appropriate treatment of each item of income, gain, loss, deduction and credit
of the Company and the accounting methods and conventions under the tax laws of the United States
of America, the several states and other relevant jurisdictions as to the treatment of any such
item or any other method or procedure related to the preparation of such tax returns. Except as
specifically provided otherwise in this Agreement, the Managing Member may cause the Company to
make or refrain from making any and all elections permitted by such tax laws. As promptly as
practicable after the end of each Fiscal Year, the Managing Member shall cause the Company to
provide to each Member a Schedule K-1 for such Fiscal Year. Additionally, the Managing Member
shall cause the Company to provide to each Member, to the extent commercially reasonable and
available to the Company without undue cost, any information reasonably required by the Member to
prepare, or in connection with an audit of, such Member’s income tax returns.



          (b) Consistent Treatment. Each Member agrees that it shall not, except as otherwise
required by applicable law or regulatory requirements, (i) treat, on its individual income tax
returns, any item of income, gain, loss, deduction or credit relating to its interest in the
Company in a manner inconsistent with the treatment of such item by the Company as reflected on the
Form K-1 or other information statement furnished by the Company to such Member for use in
preparing its income tax returns or (ii) file any claim for refund relating to any such item based
on, or which would result in, such inconsistent treatment.



          (c) Duties of the Tax Matters Member. In respect of an income tax audit of any tax
return of the Company, the filing of any amended return or claim for refund in connection with any
item of income, gain, loss, deduction or credit reflected on any tax return of the Company, or any
administrative or judicial proceedings arising out of or in connection with any such audit, amended
return, claim for refund or denial of such claim, (A) the Managing Member shall direct the Tax
Matters Member to act for, and such action shall be final and binding upon, the Company and all
Members except to the extent a Member shall properly elect to be excluded from such proceeding
pursuant to the Code, (B) all expenses incurred by the Tax Matters Member in connection therewith
(including attorneys’, accountants’ and other experts’



34









 







fees and disbursements) shall be expenses
of, and payable by, the Company, (C) no Member shall have the right to (1) participate in the audit
of any Company tax return, (2) file any amended return or claim for refund in connection with any
item of income, gain, loss, deduction or credit (other than items which are not partnership items
within the meaning of Code Section 6231(a)(4) or which cease to be partnership items under Code
Section 6231(b)) reflected on any tax return of the Company, (3) participate in any administrative
or judicial proceedings conducted by the Company or the Tax Matters Member arising out of or in
connection with any such audit, amended return, claim for refund or denial of such claim, or (4)
appeal, challenge or otherwise protest any adverse findings in any such audit conducted by the
Company or the Tax Matters Member or with respect to any such amended return or claim for refund
filed by the Company or the Tax Matters Member or in any such administrative or judicial
proceedings conducted by the Company or the Tax Matters Member and (D) the Tax Matters Member shall
keep the Members reasonably apprised of the status of any such proceeding. Notwithstanding the
previous sentence, if a petition for a readjustment to any partnership item included in a final
partnership administrative adjustment is filed with a District Court or the Court of Claims and the
IRS has elected to assess income tax against a Member with respect to that final partnership
administrative adjustment (rather than suspending assessments until the District Court or
Court of Claims proceedings become final), such Member shall be permitted to file a claim for
refund within such period of time as to avoid application of any statute of limitations which would
otherwise prevent the Member from having any claim based on the final outcome of that review.



          (d) Tax Matters Member. The Company and each Member hereby designate the Managing
Member as the “tax matters partner” for purposes of Code Section 6231(a)(7) (the “Tax Matters
Member”).



          (e) Certain Filings. Upon the Transfer of an interest in the Company (within the
meaning of the Code), a sale of Company assets or a liquidation of the Company, the Members shall
provide the Managing Member with information and shall make tax filings as reasonably requested by
the Managing Member and required under applicable law.



          (f) Section 754 Election. The Managing Member shall cause the Company to make and to
maintain and keep in effect at all times, in accordance with Sections 734, 743 and 754 of the Code
and applicable Treasury Regulations and comparable state law provisions, an election to adjust
basis in the event (i) any Class A Unit is Transferred in accordance with this Agreement or the
Exchange Agreement or (ii) any Company property is distributed to any Member.



ARTICLE IX




MISCELLANEOUS



          Section 9.1. Separate Agreements; Schedules. Notwithstanding any other provision of this Agreement, including Section 9.4, or of any
subscription agreement between the Company and any Member, the Managing Member may, or may cause
the Company to, without the approval of any other Member or other Person, enter into separate
agreements with individual Members with respect to any matter, which have the effect of
establishing rights under, or altering, supplementing or amending the terms of, this Agreement or
any such



35









 







subscription agreement. The parties hereto agree that any terms contained in any such
separate agreement shall govern with respect to such Member(s) party thereto notwithstanding the
provisions of this Agreement. The Managing Member may from time to time execute and deliver to the
Members schedules which set forth information contained in the books and records of the Company and
any other matters deemed appropriate by the Managing Member. Such schedules shall be for
information purposes only and shall not be deemed to be part of this Agreement for any purpose
whatsoever.



          Section 9.2. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF DELAWARE, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE
OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION.



          Section 9.3. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective Successors in Interest; provided that no Person claiming by, through or under
a Member (whether as such Member’s Successor in Interest or otherwise), as distinct from such
Member itself, shall have any rights as, or in respect to, a Member (including the right to approve
or vote on any matter or to notice thereof).



          Section 9.4. Amendments and Waivers. This Agreement may be amended, supplemented, waived or modified by the written consent of
the Managing Member in its sole discretion without the approval of any other Member or other
Person; provided that except as otherwise provided herein (including, without limitation, in
Section 3.2(a)), no amendment may materially and adversely affect the rights of a holder of
Units, as such, other than on a pro rata basis with other holders of Units of the same Class
without the consent of such holder (or, if there is more than one such holder that is so affected,
without the consent of a majority in interest of such affected holders in accordance with their
holdings of such Class of Units), provided further, however, that notwithstanding the foregoing,
the Managing Member may, without the written consent of any other Member or any other Person,
amend, supplement, waive or modify any provision of this Agreement and execute, swear to,
acknowledge, deliver, file and record whatever documents may be required in connection therewith,
to reflect: (1) any amendment, supplement, waiver or modification that the Managing Member
determines to be necessary or appropriate in connection with the creation, authorization or
issuance of any Class of Units or other Equity Securities in the Company or other Company
securities in accordance with this Agreement; (1) the admission, substitution, withdrawal or
removal of Members in accordance with this Agreement; (2) a change in the name of the Company, the
location of the principal place of business of the Company, the registered agent of the Company or
the registered office of the Company; (3) any amendment, supplement, waiver or modification that
the Managing Member determines in its sole discretion to be necessary or appropriate to address
changes in U.S. federal income tax regulations, legislation or interpretation; or (4) a change in
the Fiscal Year or taxable year of the Company and any other changes that the Managing Member
determines to be necessary or appropriate as a result of a change in the Fiscal Year or taxable
year of the Company, including a change in the dates on which distributions are to be made by the
Company; provided further, that the books and records of the Company shall be deemed amended from
time to time to reflect the admission of a new Member, the withdrawal or



36









 







resignation of a Member,
the adjustment of the Units or other interests in the Company resulting from any issuance, Transfer
or other disposition of Units or other interests in the Company, in each case that is made in
accordance with the provisions hereof. If an amendment has been approved in accordance with this
agreement, such amendment shall be adopted and effective with respect to all Members. Upon
obtaining such approvals as may be required by this Agreement, and without further action or
execution on the part of any other Member or other Person, any amendment to this Agreement may be
implemented and reflected in a writing executed solely by the Managing Member and the other Members
shall be deemed a party to and bound by such amendment.



          The Managing Member may, in its sole discretion, unilaterally amend this Agreement on or
before the effective date of the final regulations to provide for (i) the election of
a safe harbor under Proposed Treasury Regulation Section 1.83-3(l) (or any similar provision)
under which the fair market value of a partnership interest (or interest in an entity treated as a
partnership for U.S. federal income tax purposes) that is transferred is treated as being equal to
the liquidation value of that interest, (ii) an agreement by the Company and each of its Members to
comply with all of the requirements set forth in such regulations and Notice 2005-43 (and any other
guidance provided by the Internal Revenue Service with respect to such election) with respect to
all partnership interests (or interest in an entity treated as a partnership for U.S. federal
income tax purposes) transferred in connection with the performance of services while the election
remains effective, (iii) the allocation of items of income, gains, deductions and losses required
by the final regulations similar to Proposed Treasury Regulation Section 1.704-1(b)(4)(xii)(b) and
(c), and (iv) any other related amendments.



          No failure or delay by any party in exercising any right, power or privilege hereunder (other
than a failure or delay beyond a period of time specified herein) shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.



          Section 9.5. Notices. Whenever notice is required or permitted by this Agreement to be given, such notice shall
be in writing and shall be given to any Member at such Member’s address or facsimile number shown
in the Company’s books and records, or, if given to the Company, at the following address:


FXCM Holdings, LLC

32 Old Slip

New York, New York 10005

Attention: Chief Financial Officer



with a copy (which shall not constitute notice to the Company) to:




37









 




Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

Attention: Joshua Ford Bonnie

Facsimile: (212) 455-2502




          Each proper notice shall be effective upon any of the following: (a) personal delivery to the
recipient, (b) when sent by facsimile to the recipient (with confirmation of receipt), (c) one
Business Day after being sent to the recipient by reputable overnight courier service (charges
prepaid) or (d) three Business Days after being deposited in the mails (first class or airmail
postage prepaid).



          Section 9.6. Counterparts. This Agreement may be executed simultaneously in two or more separate counterparts, any one
of which need not contain the signatures of more than one party, but each of which shall be an
original and all of which together shall constitute one and the same agreement binding on all the
parties hereto.



          Section 9.7. Power of Attorney. Each Member hereby irrevocably appoints the Managing Member as such Member’s true and
lawful representative and attorney in fact, in such Member’s name, place and stead, (a) to make,
execute, sign and file all instruments, documents and certificates which, from time to time, may be
required to set forth any amendment to this Agreement or which may be required by this Agreement or
by the laws of the United States of America, the State of Delaware or any other state in which the
Company shall determine to do business, or any political subdivision or agency thereof and (b) to
execute, implement and continue the valid and subsisting existence of the Company or to qualify and
continue the Company as a foreign limited liability company in all jurisdictions in which the
Company may conduct business. Such power of attorney is coupled with an interest and shall survive
and continue in full force and effect notwithstanding the subsequent withdrawal from the Company of
any Member for any reason and shall survive and shall not be affected by the death, disability,
incapacity, bankruptcy or dissolution of such Member. No power of attorney granted in this
Agreement shall revoke any previously granted power of attorney.



          Section 9.8. Entire Agreement. This Agreement, the Exchange Agreement, the Tax Receivable Agreement and the other
documents and agreements referred to herein or entered into concurrently herewith embody the entire
agreement and understanding of the parties hereto in respect of the subject matter contained
herein; provided that such other agreements and documents shall not be deemed to be a part of, a
modification of or an amendment to this Agreement. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter, including the Original Agreement, the First Amended
and Restated Agreement and the Second Amended and Restated Agreement.



          Section 9.9. Remedies. Each Member shall have all rights and remedies set forth in this Agreement and all rights
and remedies that such Person has been granted at any time under any other agreement or contract
and all of the rights that such Person has under any applicable law. Any Person having any rights
under any provision of this Agreement or any



38









 







other agreements contemplated hereby shall be entitled
to enforce such rights specifically (without posting a bond or other security) to recover damages
by reason of any breach of any provision of this Agreement and to exercise all other rights granted
by applicable law.



          Section 9.10. 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.



          Section 9.11. Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any
creditors of the Company or any of its Affiliates, and no creditor who makes a loan to the Company
or any of its Affiliates may have or acquire (except pursuant to the terms of a separate agreement
executed by the Company in favor of such creditor) at any time as a result of making the loan any
direct or indirect interest in Company profits, losses, distributions, capital or property other
than as a secured or unsecured creditor in accordance with applicable law.



          Section 9.12. Waiver. No failure by any party to insist upon the strict performance of any covenant, duty,
agreement or condition of this Agreement or to exercise any right or remedy consequent upon a
breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement
or condition.



          Section 9.13. Further Action. The parties agree to execute and deliver all documents, provide all information and take or
refrain from taking such actions as may be necessary or appropriate to achieve the purposes of this
Agreement.



          Section 9.14. Delivery by Facsimile or Email. This Agreement, the agreements referred to herein, and each other agreement or instrument
entered into in connection herewith or therewith or contemplated hereby or thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or
email with scan or facsimile attachment, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal effect as if it were
the original signed version thereof delivered in person. At the request of any party hereto or to
any such agreement or instrument, each other party hereto or thereto shall re-execute original
forms thereof and deliver them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine or email to deliver a signature or the fact
that any signature or agreement or instrument was transmitted or communicated through the use of a
facsimile machine or email as a defense to the formation or enforceability of a contract, and each
such party forever waives any such defense.



39









 





          IN WITNESS WHEREOF, the parties have executed this Third Amended and Restated Limited
Liability Company Agreement.



	 	 	 	 	 	 	 	 	 

	 	 	MANAGING MEMBER	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FXCM INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	OTHER MEMBERS	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 







40