Exhibit 10.4
[FORM OF]
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
XSHARES GROUP, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
XShares Group, Inc., a corporation organized and existing under and by virtue of
the provisions of the General Corporation Law of the State of Delaware (the
"General Corporation Law"),
DOES HEREBY CERTIFY:
1.
THAT THE NAME OF THIS CORPORATION IS XSHARES GROUP, INC., AND
THAT THIS CORPORATION WAS ORIGINALLY INCORPORATED PURSUANT TO THE GENERAL
CORPORATION LAW ON AUGUST 7, 2008 UNDER THE NAME XSHARES GROUP, INC.
2.
That the Board of Directors duly adopted resolutions proposing to
amend and restate the Certificate of Incorporation of this corporation,
declaring said amendment and restatement to be advisable and in the best
interests of this corporation and its stockholders, and authorizing the
appropriate officers of this corporation to solicit the consent of the
stockholders therefor, which resolution setting forth the proposed amendment and
restatement is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended
and restated in its entirety to read as follows:
FIRST:
THE NAME OF THIS CORPORATION IS XSHARES GROUP, INC. (THE "CORPORATION").
SECOND:
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801, County of New Castle.
The name of its registered agent at such address
is The Corporation Trust Company.
THIRD:
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law.
FOURTH:
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is (i) 1,400,000,000 shares of Common
Stock, $0.0001 par value per share ("Common Stock"), and (ii) 672,000,000 shares
of Preferred Stock, $0.0001 par value per share ("Preferred Stock").
The following is a statement of the designations and the powers, privileges and
rights, and the qualifications, limitations or restrictions thereof in respect
of each class of capital stock of the Corporation.
A.
COMMON STOCK
1.
GENERAL.
THE VOTING, DIVIDEND AND LIQUIDATION RIGHTS OF THE
HOLDERS OF THE COMMON STOCK ARE SUBJECT TO AND QUALIFIED BY THE RIGHTS, POWERS
AND PREFERENCES OF THE HOLDERS OF THE PREFERRED STOCK SET FORTH HEREIN.
2.
VOTING.
THE HOLDERS OF THE COMMON STOCK ARE ENTITLED TO ONE VOTE
FOR EACH SHARE OF COMMON STOCK HELD AT ALL MEETINGS OF STOCKHOLDERS (AND WRITTEN
ACTIONS IN LIEU OF MEETINGS); PROVIDED, HOWEVER, THAT, EXCEPT AS OTHERWISE
REQUIRED BY LAW, HOLDERS OF COMMON STOCK, AS SUCH, SHALL NOT BE ENTITLED TO VOTE
ON ANY AMENDMENT TO THE CERTIFICATE OF INCORPORATION THAT RELATES SOLELY TO THE
TERMS OF ONE OR MORE OUTSTANDING SERIES OF PREFERRED STOCK IF THE HOLDERS OF
SUCH AFFECTED SERIES ARE ENTITLED, EITHER SEPARATELY OR TOGETHER WITH THE
HOLDERS OF ONE OR MORE OTHER SUCH SERIES, TO VOTE THEREON PURSUANT TO THE
CERTIFICATE OF INCORPORATION