LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
NYFIX MILLENNIUM, L.L.C.
(a Delaware limited liability company)
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
NYFIX MILLENNIUM, L.L.C.
This Limited Liability Company Operating Agreement of the
above, a limited liability company organized pursuant to the Act (as hereinafter
defined), shall be effective as of the Effective Date (as hereinafter defined),
by and among the Company and the persons executing this Agreement (each a
"Member").
ARTICLE I
DEFINITIONS
For purposes of this Agreement, unless the context clearly
indicates otherwise, terms used herein shall have the meaning set forth in the
Act and the following terms shall have the following meanings:
1.1 Act. The Delaware Limited Liability Company Act and all amendments
thereto.
1.2 Affiliate. Affiliate shall have the meaning ascribed to such term
in Rule 12b-2 of the Securities Exchange Act of 1934, as amended.
1.3 Agreement. This Limited Liability Company Operating Agreement
including all amendments adopted in accordance with this Agreement and
the Act.
1.4 Articles. The Articles of Organization of the Company, as amended
from time to time, and filed with the Secretary of State of the State
of Delaware.
1.5 Assignee. A transferee of any Unit of Membership Interest who has
not been admitted as a Substitute Member.
1.6 BHCA. The Bank Holding Company Act of 1956, as amended.
1.7 BHCA Member. A BHCA Member shall be any Member who is subject to
Section 4 of the BHCA (and shall include the BHCA Special Member).
1.8 BHCA Special Member. The BHCA Special Member shall be the Member
designated as such on the signature pages hereto.
1.9 Board of Director or Board. Board of Directors or Board shall mean
the Board of Directors of the Company.
1.10 By-Laws. By-Laws shall mean the By-Laws of the Company.
1.11 Capital Accounts. Capital Accounts shall mean the capital account
of a Member as described herein.
1.12 Capital Contribution. Any contribution of Property or services
made by or on behalf of a Member, Substitute Member or Assignee.
1.13 Commitment. The Capital Contribution that a Member is obligated to
make pursuant to this Agreement.
1.14 Company. The company named at the beginning of this Agreement, a
limited liability company formed under the laws of the State of
Delaware, and any successor limited liability company.
1.15 Disability. The inability to perform a substantial portion of the
Member's services to the Company as the result of a mental or physical
illness which has continued or can reasonably be expected to continue
for a period of not less than six months or has continued or can
reasonably be expected to continue for an aggregate of not less than
180 days in any 365-day period.
1.16 Effective Date. The date of filing of the Articles or such other
date as set forth in the Articles.
1.17 Fiscal Period. Each fiscal quarter.
1.18 Initial Member. Trinitech and each other Member who became a
Member on or prior to October 31, 1999. There shall not be permitted
more than seven Initial Members, in addition to Trinitech.
1.19 Membership Interest. The rights of a Member to distributions
(liquidating or otherwise) and allocations of the Profits, Losses,
gains, deductions and credits of the Company and, to the extent
permitted by this Agreement, to possess and exercise voting rights.
1.20 Property. Any property, real or personal, tangible or intangible
including, without limitation, money, and any legal or equitable
interest in such property, but excluding services and promises to
perform services in the future.
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1.21 Substitute Member. An Assignee who has been admitted to all of the
rights of membership pursuant to Section 10.3 of the Agreement.
1.22 Special Dividend. A dividend of cash in an amount equal to 20% of
the Company's Profits in the fiscal quarter immediately prior to
payment of such dividend.
1.23 Tax Characterization and Additional Tax Terms. It is intended that
the Company be characterized and treated as a partnership for, and
solely for, federal, state and local income tax purposes. For such
purpose, (i) the Company shall be subject to all of the provisions of
Subchapter K of Chapter 1 of Subtitle A of the Code, (ii) all
references to a "Partner," to "Partners" and to the "Partnership" in
this Agreement (including the provisions of Article VIII) and in the
provisions of the Code and Tax Regulations cited in this Agreement
shall be deemed to refer to a Member, the Members and the Company,
respectively. In addition, the following terms shall have the following
meanings:
(a) Code shall mean the Internal Revenue Code of 1986, as
amended.
(b) Adjusted Capital Account Deficit shall mean, with
respect to any Member, the deficit balance, if any, in such Member's
Capital Account as of the end of the relevant Fiscal Period, after
giving effect to the following adjustments:
(i) Credit to such Capital Account the minimum gain
chargeback that such Member is deemed to be obligated to
restore pursuant to the penultimate sentences of Sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Tax Regulations; and
(ii) Debit to such Capital Account the items
described in Sections 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6) of the
Tax Regulations.
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d)
of the Tax Regulations and shall be interpreted consistently therewith.
(c) Nonrecourse Deductions has the meaning set forth in
Section 1.704-2(b)(1) of the Tax Regulations.
(d) Nonrecourse Liability has the meaning set forth in
Section 1.704-2(b)(3) of the Tax Regulations.
(e) Partner Nonrecourse Debt has the meaning set forth in
Section 1.704-2(b)(4) of the Tax Regulations.
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(f) Partner Nonrecourse Debt Minimum Gain means an amount,
with respect to each Partner Nonrecourse Debt, equal to the Partnership
Minimum Gain that would result if such Partner Nonrecourse Debt were
treated as a Nonrecourse Liability, determined in accordance with
Section 1.704-2(i)(3) of the Tax Regulations.
(g) Partner Nonrecourse Deductions has the meaning set forth
in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Tax Regulations.
(h) Partnership Minimum Gain has the meaning set forth in
Sections 1.704- 2(b)(2) and 1.704-2(d) of the Tax Regulations.
(i) Profits and Losses shall mean, for each Fiscal Period,
an amount equal to the Company's taxable income or loss for such Fiscal
Period, determined in accordance with Section 703(a) of the Code (for
this purpose, all items of income, gain, loss, or deduction required to
be stated separately pursuant to Section 703(a)(1) of the Code shall be
included in taxable income or loss), with the following adjustments:
(i) Any income of the Company that is exempt from
federal income tax and not otherwise taken into account in
computing Profits or Losses pursuant to this Section 1.22
shall be added to such taxable income or loss;
(ii) Any expenditures of the Company described in
Section 705(a)(2)(B) of the Code or treated as Section
705(a)(2)(B) of the Code expenditures pursuant to Section
1.704-1(b)(2)(iv)(i) of the Tax Regulations, and not
otherwise taken into account in computing Profits or Losses
pursuant to this Section 1.18, shall be subtracted from such
taxable income or loss;
(j) Tax Regulations shall mean the federal income tax
regulations promulgated by the United States Treasury Department under
the Code as such Tax Regulations may be amended from time to time. All
references herein to a specific section of the Tax Regulations shall be
deemed also to refer to any corresponding provision of succeeding Tax
Regulations.
1.24 Trinitech. Trinitech shall mean Trinitech Systems, Inc., a New
York corporation.
1.25 Unit. One of the units of Membership Interest that are authorized
to be issued under this Agreement. Each Unit represents a Membership
Interest with an initial ratio of one divided by the total number of
Units issued hereunder, subject to adjustment as provided herein. A
Unit is divisible into fractional parts. References to Units herein
shall be solely for the purpose of certificating the Membership
Interests authorized hereunder. Voting, the granting or withholding of
consents or approvals, and allocation of Profits and Losses and
distributions shall be made pursuant to the applicable provisions of
this Agreement without reference to the number of Units held by
Members.
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ARTICLE II
FORMATION
2.1 Organization. The Members hereby organize the Company as a Delaware
limited liability company pursuant to the provisions of the Act.
2.2 Agreement. For and in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Members executing this
Agreement hereby agree to the terms and conditions of the Agreement, as it may
from time to time be amended. Except as otherwise provided herein, it is the
express intention of the Members that the Agreement shall be the sole source of
agreement of the parties and, except to the extent a provision of the Agreement
expressly incorporates federal income tax rules by reference to sections of the
Code or Tax Regulations or is expressly prohibited or ineffective under the Act,
the Agreement shall govern, even when inconsistent with, or different than, the
provisions of the Act or any other law or rule. To the extent any provision of
the Agreement is prohibited or ineffective under the Act, the Agreement shall be
deemed to be amended to the least extent necessary in order to make the
Agreement effective under the Act. In the event the Act is subsequently amended
or interpreted in such a way to make any provision of the Agreement that was
formerly invalid valid, such provision shall be considered to be valid from the
effective date of such interpretation or amendment.
2.3 Name. The name of the Company is the name set forth at the
beginning of this Agreement and all business of the Company shall be conducted
under that name.
2.4 Term. The Company shall be dissolved and its affairs wound up in
accordance with the Act and the Agreement on December 31, 2049 unless the term
shall be extended by amendment to the Agreement and the Articles, or unless the
Company shall be sooner dissolved and its affairs wound up in accordance with
the Act or the Agreement.
2.5 Executive and Administrative Offices. The executive office (the
"Executive Office") of the Company shall be located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000 and the administrative office (the "Administrative
Office") of the Company shall be located at 000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000. The Board of Directors may, from time to time, change the
location of the Executive Office or the Administrative Office.
2.6 Registered Agent and Office. The name and address of the registered
agent for the service of process shall be National Corporate Research, Ltd., 0
Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000. The Board of Directors, may, from
time to time, change the registered agent or office through appropriate filings
with the Department of State of the State of Delaware. In the event the
registered agent ceases to act as such for any reason or the registered office
shall change, the Board of Directors shall promptly designate a replacement
registered agent or file a notice of change of address, as the case may be.
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ARTICLE III
PURPOSE; NATURE OF BUSINESS
The business purpose of the Company is to create and operate
an Alternative Trading System ("ATS") to be registered as a Broker Dealer in
compliance with Regulation ATS. The authority granted to the Board of Directors
hereunder to bind the Company shall be limited to actions necessary or
convenient to this business.
ARTICLE IV
ACCOUNTING AND RECORDS
The Board of Directors, at the Company's expense, shall
prepare and timely file income tax returns of the Company in all jurisdictions
where such filings are required, and the Company shall prepare and deliver to
each Member, as soon as practicable following the expiration of each Fiscal
Period, and at the Company's expense, all information returns and reports
required by the Code and Tax Regulations and information in respect of the
Company necessary for the preparation of the Members' federal income tax
returns.
ARTICLE V
NAMES AND ADDRESSES OF MEMBERS
The names and addresses of the Members are as set forth on
each Member's signature page hereto.
ARTICLE VI
BOARD OF DIRECTORS
6.1 Powers of the Board. (a) The business affairs of the Company shall
be managed by the Board of Directors in accordance with this Agreement and the
By-Laws. The Board may exercise all such powers of the Company and do all such
lawful acts and things as are not by statute, this Agreement or the By-Laws
directed or required to be exercised or done by the Members.
(b) Except as otherwise provided in this Agreement or the By-Laws, the
Board of Directors may delegate any or all of its powers to committees of the
Board established pursuant to the By-Laws, and to officers and agents elected or
designated by the Board or a duly constituted committee thereof.
6.2 Board Members. The Board of Directors of the Company shall
initially consist of (i) three (3) voting directors (collectively, the "Voting
Directors") to be designated by Trinitech, and (ii) a number of advisory board
members (collectively, the "Advisory Directors") equal to the
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number of Members other than Trinitech (the "Non-Trinitech Members"), such that
one Advisory Director shall be designated by each Non-Trinitech Member. The
Voting Directors shall initially be Xxxxx Xxxxxxxxx Xxxxxx, Xxxx Xxxxxx and a
representative of the Company's legal counsel, as may be changed by Trinitech
from time to time. Each Advisory Director appointed to the Board of Directors
shall have the right to attend all board meetings and to participate in all
discussions regarding the management of the Company and make recommendations to
the Voting Directors. All decisions relating to the management and operations of
the Company shall be made solely through a majority vote of the Voting
Directors, subject to the provisions of Section II(4) of the Subscription
Agreements between the Company, Trinitech and each of the other Initial Members.
6.3 Records to be Maintained. The Board of Directors of the Company
shall maintain, or cause to be maintained, the following records at the
Administrative Office:
(a) A current list of the full name and last known business or
residence address of each Member and former Member and the Capital Account of
each Member associated with their respective Membership Interests, as of a
recent practicable date;
(b) A copy of the Certificate and all amendments thereto, together with
executed copies of any powers of attorney pursuant to which the Certificate has
been executed;
(c) Copies of the Company's federal, foreign, state and local income
tax returns and reports, if any, for the seven most recent years;
(d) Copies of this Agreement, including all subsequent amendments
thereto; and
(e) Copies of all financial statements of the Company for the seven
most recent years.
6.4 Reports to Members. The Board of Directors shall provide (or cause
the Company to provide) reports at least annually to the Members at such time
(but not later than 90 days after the end of each fiscal year of the Company,
unless good cause is shown) and in such manner as it shall reasonably determine,
which reports shall include (i) a balance sheet of the Company as of the close
of the last completed fiscal year, a statement of income showing the results of
operation of the Company during such year, and a cash flow statement showing the
cash receipts and disbursements of the Company during such year, each prepared
in accordance with GAAP, (ii) a statement showing each Member's share of Profit
or Loss of the Company for such year, and (iii) such other information as the
Board deems appropriate. The Board shall provide (or cause the Company to
provide) all Members with the information returns required by the Code and the
laws of any applicable state in a timely manner.
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ARTICLE VII
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
7.1 Capital Contributions. Each Member shall, no later than upon his
execution and delivery of this Agreement, make the Capital Contribution set
forth on his respective signature page hereto, in consideration of which each
Member shall receive the Membership Interest set forth on its respective
signature page; provided, however, Trinitech shall receive a Membership Interest
equal to the aggregate Membership Interest of all other Initial Members, to be
adjusted as appropriate such that Trinitech shall have a Membership Interest
equal to 50% of the Units granted to all Initial Members, including Trinitech.
No Member shall have the right to withdraw or be repaid any Capital Contribution
except as provided in this Agreement.
7.2 Capital Account. A separate Capital Account shall be maintained for
each Member throughout the term of the Company in accordance with the rules of
Section 1.704-1(b)(2)(iv) of the Tax Regulations as in effect from time to time
and, to the extent not inconsistent therewith, to which the following provisions
apply:
(a) To each Member's Capital Account there shall be credited
(i) the amount of money contributed by such Member to the Company
(including liabilities of the Company assumed by such Member as
provided in Section 1.704-1(b)(2)(iv)(c) of the Tax Regulations); (ii)
the fair market value of any Property contributed to the Company by
such Member (net of liabilities secured by such contributed Property
that the Company is considered to assume or take subject to under
Section 752 of the Code); and (iii) such Member's share of Profits and
items of income and gain.
(b) To each Member's Capital Account there shall be debited:
(i) the amount of money distributed to such Member by the Company
(including liabilities of such Member assumed by the Company as
provided in Section 1.704-1(b)(2)(iv)(c) of the Tax Regulations) other
than amounts which are in repayment of debt obligations of the Company
to such Member; (ii) the fair market value of Property distributed to
such Member (net of liabilities secured by such distributed Property
that such Member is considered to assume or take subject to under
Section 752 of the Code); and (iii) such Member's share of Losses or
items of loss or deduction that are specially allocated.
The foregoing provisions and the other provisions of this Agreement relating to
the maintenance of Capital Accounts are intended to comply with Section
1.704-1(b) of the Tax Regulations and Section 704(c) of the Code and shall be
interpreted and applied in a manner consistent with such Tax Regulations. In the
event the Members shall determine that it is prudent to modify the manner in
which the Capital Accounts, or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities that are secured by
contributed or distributed Property or that are assumed by the Company or any
Member), are computed in order to comply with such Tax Regulations, the Members
may make such modification, provided that it is not likely to have a
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material effect on the amounts distributable to any Member pursuant to Article
XI hereof upon the dissolution of the Company.
7.3 Withdrawal. A Member shall not be entitled to withdraw any part of
its Capital Account or to receive any distribution from the Company, except as
specifically provided in the Agreement, and no Member shall be entitled to make
any Capital Contribution to the Company other than in respect of his respective
Commitment.
7.4 Interest. No Member shall be entitled to interest on such Member's
Capital Contribution or on any Profits retained by the Company.
7.5 Additional Members. At any time up to October 31, 1999, the Board
of Directors may, in its sole discretion, from time to time, admit to the
Company one or more persons as additional Initial Members; provided, however,
that the number of Initial Members, other than Trinitech, shall not exceed
seven. Each additional Initial Member shall execute a counterpart of this
Agreement and such other instruments as the Board of Directors may require to
confirm the undertaking of such person to be bound by all the terms and
provisions of this Agreement. At any time subsequent to October 31, 1999, the
Company may from time to time, with the prior written consent of both (i)
two-thirds of the Members, such two-thirds calculated on the basis of the total
number of Members without regard to the Members' respective Membership
Interests, and (ii) Trinitech, admit to the Company one or more persons as
additional Members. Each such additional Member shall execute a counterpart of
this Agreement and such other instruments as the Board of Directors may require
to confirm the undertaking of such person to be bound by all the terms and
provisions of this Agreement. With respect to any such additional Member
admitted to the Company on or after October 31, 1999, the Capital Accounts of
Members other than such additional Member shall be adjusted, i.e. "booked up" or
"booked down" as the case may be, in accordance with Section
1.704-1(b)(2)(iv)(f) of the Tax Regulations to reflect the Commitment of the
additional Member, except as otherwise determined by consent of the Members and
Trinitech as provided above.
ARTICLE VIII
ALLOCATIONS AND DISTRIBUTIONS
8.1 Profits and Losses. Profits and Losses, and each item of Company
income, gain, loss, deduction, credit and tax preference with respect thereto,
for each Fiscal Period (or shorter period in respect of which such items are to
be allocated) shall be allocated among the Members as provided in this Article
VIII.
(a) Profits. After giving effect to the special allocations
set forth in Sections 8.3, 8.4 and 8.6, Profits for any Fiscal Period shall be
allocated: 80% to Trinitech and 20% to the Non- Trinitech Members in accordance
with Section 8.5.
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(b) Losses. After giving effect to the special allocations
set forth in Sections 8.4 and 8.5, Losses shall be allocated in the following
order of priority:
(i) first, as to the first Losses up to the product
of (x) $2,000,000 multiplied by (y) the number of Initial
Members (other than Trinitech), to the Non- Trinitech
Members, in proportion to their respective Membership
Interests, but only to the extent of their respective
Capital Account balances;
(ii) second, to Trinitech to the extent of its
Capital Account balance; and
(iii) then, the balance, if any, among the Members in
proportion to their respective Membership Interests.
8.2 Distributions.
(a) Dividends. Distributions shall be made (i) to the
Non-Trinitech Members in an amount equal to 20% of the Profits for any Fiscal
Period, which distribution shall be the Special Dividend allocated and paid
pursuant to the provisions set forth in Section 8.2(b) below and (ii) to
Trinitech in an amount equal to 80% of the Profits for any Fiscal Period. The
distributions to Trinitech shall be made at such time or times as the Board of
Directors shall determine consistent with the provisions of this Agreement.
(b) Non-Trinitech Member Dividends. Dividends to the
Non-Trinitech Members as provided in Section 8.2(a) above shall be paid as a
Special Dividend no later than 45 days following the end of any fiscal quarter
in which the Company shows a Profit. Such Special Dividend shall be distributed
amongst the Non-Trinitech Members according to the fraction, the numerator of
which is the aggregate order flow volume measured in Company eligible shares of
each Non- Trinitech Member during such fiscal quarter, and the denominator of
which is aggregate order flow volume measure in Company eligible shares for all
Non-Trinitech Members during such fiscal quarter. For example, if the Profits
for a fiscal quarter are $25 million, and a Non-Trinitech Member puts through 50
million aggregate order flow volume measured in Company eligible shares during
such fiscal quarter, while all Non-Trinitech Members put through 100 million
aggregate order flow volume measured in Company eligible shares during such
fiscal quarter, then such Member shall receive one-half of the available Special
Dividend, or $2.5 million. No such Special Dividend shall be payable following
any fiscal quarter in which the Company has not shown a Profit, nor shall such
Special Dividend be payable to the Non-Trinitech Member(s), if any, who fail to
effectuate any trades with the Company during the fiscal quarter for which a
Special Dividend relates.
8.3 Special Allocations. The following special allocations shall be
made in the following order:
(a) Minimum Gain Chargeback. Except as otherwise provided in
Section 1.704- 2(f) of the Tax Regulations, notwithstanding any other provision
of this Article VIII, if there is a net decrease in Partnership Minimum Gain
during any Fiscal Period, each Member shall be specially
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allocated items of Company income and gain for such Fiscal Period (and, if
necessary, subsequent Fiscal Periods) in an amount equal to such Member's share
of the net decrease in Partnership Minimum Gain, determined in accordance with
Section 1.704-2(g) of the Tax Regulations. Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Member pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the
Tax Regulations. This Section 8.3(a) is intended to comply with the minimum gain
chargeback requirement in Section 1.704-2(f) of the Tax Regulations and shall be
interpreted consistently therewith.
(b) Partner Minimum Gain Chargeback. Except as otherwise
provided in Section 1.704-2(i)(4) of the Tax Regulations, notwithstanding any
other provision of this Article VIII, if there is a net decrease in Partner
Nonrecourse Debt Minimum Gain attributable to a Partner Nonrecourse Debt during
any Fiscal Period, each Member who has a share of the Partner Nonrecourse Debt
Minimum Gain attributable to such Partner Nonrecourse Debt, determined in
accordance with Section 1.704-2(i)(5) of the Tax Regulations, shall be specially
allocated items of Company income and gain for such Fiscal Period (and, if
necessary, subsequent Fiscal Periods) in an amount equal to such Member's share
of the net decrease in Partner Nonrecourse Debt Minimum Gain attributable to
such Partner Nonrecourse Debt, determined in accordance with Section 1.704-
2(i)(4) of the Tax Regulations. Allocations pursuant to the previous sentence
shall be made in proportion to the respective amounts required to be allocated
to each Member pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i)(4) and 1.704- 2(j)(2) of the
Tax Regulations. This Section 8.3(b) is intended to comply with the minimum gain
chargeback requirement in Section 1.704-2(i)(4) of the Tax Regulations and shall
be interpreted consistently therewith.
(c) Qualified Income Offset. In the event any Member
unexpectedly receives any adjustments, allocations, or distributions described
in Section 1.704-1(b)(2)(ii)(d)(4), Section 1.704- 1(b)(2)(ii)(d)(5), or Section
1.704-1(b)(2)(ii)(d)(6) of the Tax Regulations, items of Company income and gain
shall be specially allocated to the Member in an amount and manner sufficient to
eliminate, to the extent required by the Tax Regulations, the Adjusted Capital
Account Deficit of the Member as quickly as possible, provided that an
allocation pursuant to this Section 8.3(c) shall be made only if and to the
extent that the Member would have an Adjusted Capital Account Deficit after all
other allocations provided for in this Article VIII have been tentatively made
as if this Section 8.3(c) were not in this Agreement.
(d) Gross Income Allocation. In the event any Member has a
deficit Capital Account at the end of any Fiscal Period which is in excess of
the sum of the amounts such Member is deemed to be obligated to restore pursuant
to the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the
Tax Regulations, each such Member shall be specially allocated items of Company
income and gain in the amount of such excess as quickly as possible, provided
that an allocation pursuant to this Section 8.3(d) shall be made only if and to
the extent that such Member would have a deficit Capital Account in excess of
such sum after all other allocations provided for in this Article VIII have been
made as if Section 8.3(c) and this Section 8.3(d) were not in this Agreement.
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(e) Nonrecourse Deductions. Nonrecourse Deductions for any
Fiscal Period shall be specially allocated among the Members in proportion to
their Membership Interests.
(f) Partner Nonrecourse Deductions. Any Partner Nonrecourse
Deductions for any Fiscal Period shall be specially allocated to the Member who
bears the economic risk of loss with respect to the Partner Nonrecourse Debt to
which such Partner Nonrecourse Deductions are attributable in accordance with
Section 1.704-2(i)(1) of the Tax Regulations.
(g) Mandatory Allocations Under Section 704(c) of the Code.
Notwithstanding the foregoing provisions of this Section 8.3, in the event
Section 704(c) of the Code or Section 704(c) of the Code principles applicable
under Section 1.704-1(b)(2)(iv) of the Tax Regulations require allocations of
Profits or Losses in a manner different than that set forth above, the
provisions of Section 704(c) of the Code and the Tax Regulations thereunder
shall control such allocations among the Members. Any item of Company income,
gain, loss and deduction with respect to any property (other than cash) that has
been contributed by a Member to the capital of the Company or which has been
revalued for Capital Account purposes pursuant to Section 1.704-l(b)(2)(iv) of
the Tax Regulations) and which is required or permitted to be allocated to such
Member for income tax purposes under Section 704(c) of the Code so as to take
into account the variation between the tax basis of such property and its fair
market value at the time of its contribution shall be allocated solely for
income tax purposes in the manner so required or permitted under Section 704(c)
of the Code using the "traditional method" described in Section 1.704-3(b) of
the Tax Regulations; provided, however, that curative allocations consisting of
the special allocation of gain or loss upon the sale or other disposition of the
contributed property shall be made in accordance with Section 1.704-3(c) of the
Tax Regulations to the extent necessary to eliminate any disparity, to the
extent possible, between the Members' book and tax Capital Accounts attributable
to such property; further provided, however, that any other method allowable
under applicable Tax Regulations may be used for any contribution of property as
to which there is agreement between the contributing Member and the other
Members.
8.4 Curative Allocations. The allocations set forth in Sections 8.3 (a)
through (g) (the "Regulatory Allocations") are intended to comply with certain
requirements of the Tax Regulations. It is the intent of the Members that, to
the extent possible, all Regulatory Allocations shall be offset either with
other Regulatory Allocations or with special allocations of other items of
Company income, gain, loss, or deduction pursuant to this Section 8.4.
Therefore, notwithstanding any other provision of this Article VIII (other than
the Regulatory Allocations), the Members 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 Regulatory Allocations
were not part of this Agreement and all Company items were allocated pursuant to
Sections 8.2 and 8.3. The Members (i) shall take into account future Regulatory
Allocations under Sections 8.3(a) and 8.3(b) that, although not yet made, are
likely to offset other Regulatory Allocations previously made under Sections
8.3(e) and 8.3(f) and (ii) may reallocate Profits and Losses for prior open
years (or items of gross income and deduction of the Company for such years)
among the Members to the extent it is not possible to achieve such result
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with allocations of items of income (including gross income) and deduction for
the current year and future years. This Section 8.4 shall control
notwithstanding any reallocation or adjustment of taxable income, taxable loss,
or items thereof by the Internal Revenue Service or any other taxing authority.
8.5 Allocations Relating to Non-Trinitech Member Dividends.
(a) Any Non-Trinitech Member allocated a Special Dividend
pursuant to Section 8.2 shall also be allocated that percentage of the Profits
for the fiscal quarter that relates to such Non- Trinitech Member's Special
Dividend.
(b) The amount of any Special Dividend shall be charged
against and shall reduce the Capital Accounts of the Non-Trinitech Members in
accordance with the distributions to each such Non-Trinitech Member pursuant to
Section 8.2(b).
8.6 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses, or any
other item allocable to any period (including allocations to take into account
any changes in any Member's Membership Interest during a Fiscal Period and any
transfer of any interest in the Company), Profits, Losses, and any such other
item shall be determined on a daily, monthly, or other basis, as determined by
the Members using any permissible method under Section 706 of the Code and the
Tax Regulations thereunder.
(b) The Members are aware of the income tax consequences of
the allocations made by this Article VIII and hereby agree to be bound by the
provisions of this Article VIII in reporting their shares of Company income and
loss for income tax purposes.
ARTICLE IX
TAXES
9.1 Tax Matters Partner. Trinitech shall be the Tax Matters Partner of
the Company pursuant to Section 6231(a)(7) of the Code. Such Member shall not
resign as the Tax Matters Partner unless, on the effective date of such
resignation, the Company has designated another Member as Tax Matters Partner
and such Member has given its consent in writing to its appointment as Tax
Matters Partner. The Tax Matters Partner shall receive no additional
compensation from the Company for its services in that capacity, but all
expenses incurred by the Tax Matters Partner in such capacity shall be borne by
the Company. The Tax Matters Partner is authorized to employ such accountants,
attorneys and agents as he, in his sole discretion, determines is necessary to
or useful in the performance of its duties. In addition, such Member shall serve
in a similar capacity with respect to any similar tax related or other election
provided by state or local laws.
-13-
9.2 Section 754 Election. The Board of Directors may agree to have the
Company make the election permitted by Section 754 of the Code with respect to
adjustments to the basis of Property of the Company. The cost of preparing such
election, and any additional accounting expenses of the Company occasioned by
such election, shall be borne by the transferees or distributees of the interest
in the Company.
ARTICLE X
TRANSFER OF MEMBERSHIP INTEREST
10.1 Compliance with Securities Laws. No Unit of Membership Interest
has been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or under any applicable state securities laws. A Member may
not transfer (a transfer, for purposes of this Agreement, shall be deemed to
include, but not be limited to, any sale, transfer, assignment, pledge, creation
of a security interest or other disposition) all or any part of such Member's
Units of Membership Interest, except upon compliance with the applicable federal
and state securities laws. The Members shall have no obligation to register any
Member's Units of Membership Interest under the Securities Act or under any
applicable state securities laws, or to make any exemption therefrom available
to any Member.
10.2 Transfer of Economic Interest. The right to receive allocations of
Profits and Losses and to receive distributions may not be transferred, in whole
or in part, unless the following terms and conditions have been satisfied:
(a) Members (including the transferring Member) holding at
least 51% of the Membership Interests shall have consented in writing
to the transfer, which consent may be arbitrarily withheld by any such
Member;
(b) The transferor shall have assumed all costs incurred by
the Company in connection with the transfer;
(c) The transferor shall have furnished the Company with a
written opinion of counsel, satisfactory in form and substance to
counsel for the Company, that such transfer complies with applicable
federal and state securities laws and the Agreement and that such
transfer, for federal income tax purposes, will not cause the
termination of the Company under Section 708(b) of the Code, cause the
Company to be treated as an association taxable as a corporation for
income tax purposes or otherwise adversely affect the Company or the
Members; and
(d) The transferor shall have complied with such other
conditions as the Board may reasonably require from time to time.
Transfers will be recognized by the Company as effective only upon the close of
business on the last day of the calendar month following satisfaction of the
above conditions. Any transfer in
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contravention of this Article X and any transfer which if made would cause a
termination of the Company for federal income tax purposes under Section 708(b)
of the Code shall be void ab initio and without force and effect and shall not
bind the Company or the other Members. Transfers by Members to Affiliates shall
not be subject to the provisions of Section 10.2(a) hereof.
10.3 Transfer of Membership Interest and Admission of Substitute
Member. Except for the right to receive allocations of Profits and Losses and to
receive distributions, a Membership Interest of any Member may not be
transferred, in whole or in part, and a transferee shall not have a right to
become a Member unless, in addition to satisfying the terms and conditions of
Sections 10.2 (b), (c) and (d), the following terms and conditions have been
satisfied:
(a) Members (including the transferring Member) holding at
least 51% of the Membership Interests shall have consented in writing
to the transfer and substitution, which consent may be arbitrarily
withheld by any such Member;
(b) The transferee shall have assumed the obligations, if
any, of the transferor to the Company, including the obligation to
fulfill the pro rata portion of the transferor's then existing or
subsequently arising Commitment allocable to the transferred Unit of
Membership Interest or portion thereof; and
(c) The transferor and the transferee shall have complied
with such other requirements as the Board may reasonably impose
including, without limitation, the conditions that the transferee:
(i) adopt and approve in writing all the terms and
provisions of the Agreement then in effect; and
(ii) pay such fees as may be reasonable to pay the
costs of the Company in effecting such substitution.
Transfers by Members to Affiliates shall not be subject to
the provisions of Section 10.3(a) hereof.
10.4 Status of Transferee. Except as otherwise provided herein, a
transferee of a Unit of Membership Interest who is not a Substitute Member shall
be entitled only to receive that share of Profits, Losses and distributions, and
the return of Capital Contributions, to which the transferor would otherwise be
entitled with respect to the interest transferred, and shall not have the rights
of a Member of the Company under the Act or this Agreement including, without
limitation, the right to obtain any information on account of the Company's
transactions, to inspect the Company's books or to vote with the Members on, or
to grant or withhold consents or approvals of, any matter. The Company shall,
however, if a transferee and transferor jointly advise the Company in writing of
a transfer of the Unit of Membership Interest, furnish the transferee with
pertinent tax information at the end of each Fiscal Period.
-15-
10.5 Transfer of Membership Interest of a BHCA Special Member and other
BHCA Related Provisions.
(a) A BHCA Special Member's Membership Interest shall be
held by any assignee or other transferee of such BHCA Special Member's
Membership Interest in the same capacity, provided that any such assignee or
transferee shall have full voting rights with regard to such Membership
Interest, without regard to the limitation set forth in Section 13.1, if they
are transferred (i) to the public in an offering registered under the Securities
Act of 1933, as amended (the "Securities Act"), (ii) in a transaction pursuant
to Rules 144 or 144A under the Securities Act in which no person acquires more
than 2% of the Company's outstanding Membership Interests or (iii) in a single
transaction to a third party who acquires a majority of the Company's
outstanding Membership Interests without regard to the transfer of such BHCA
Special Member's Membership Interests. In the event of a change in the law
governing a BHCA Special Member the effect of which is to permit any such BHCA
Special Member to transfer such Membership Interests in any other manner, the
foregoing shall be deemed modified to permit a transfer of such Membership
Interests in such other manner.
(b) No transfer of a Unit of Membership Interest by a BHCA
Special Member shall confer on such transferee a greater Membership Interest
than such BHCA Special Member had after giving effect to the limitations imposed
pursuant to the BHCA unless such transferor certifies to the Board of Directors
that the transfer, taking into account the increase in Membership Interest
resulting therefrom, is consistent with applicable banking law, including the
BHCA.
(c) If at any time the percentage Membership Interest owned
by a BHCA Member or its Affiliates exceeds 24.99% of the total issued and
outstanding Membership Interests of the Company (the "Ownership Threshold"),
such BHCA Member, or its Affiliate, as the case may be, shall be permitted to
transfer that portion of its Membership Interest as is necessary to reduce its
percentage ownership to the Ownership Threshold, notwithstanding any contrary
provision limiting transfer herein or in any agreement among the Members, and
the Company shall cooperate to the extent reasonably request by the BHCA Member
at the BHCA Member's expense in the discovery of a purchaser for such portion of
such BHCA Member's Membership Interests; provided, however, that if such BHCA
Member, or its Affiliate, as the case may be, is unable within 60 days to
transfer such portion of its Membership Interests, the Company will take such
action as such BHCA Member may reasonably request to reduce such BHCA Member's
percentage ownership to the Ownership Threshold, at the BHCA Member's expense.
10.6 Legend on Certificates. The certificates representing the Units
shall bear the following legend:
"THE UNITS OF MEMBERSHIP INTEREST REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO AN OPERATING AGREEMENT, A COPY OF
WHICH IS ON FILE AT THE ADMINISTRATIVE OFFICE OF THE
COMPANY. THE UNITS OF MEMBERSHIP INTEREST MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED,
-16-
HYPOTHECATED, OR OTHERWISE DISPOSED OF EXCEPT AS EXPRESSLY
PROVIDED BY THE TERMS OF THE OPERATING AGREEMENT."
10.7 Dispositions Not in Compliance with this Article Void. Any
attempted disposition of a Unit of Membership Interest, or any part thereof, not
in compliance with this Article X shall be void ab initio and without force and
effect and shall not bind the Company or the other Members.
ARTICLE XI
DISSOLUTION AND WINDING UP
11.1 Dissolution. The Company shall be dissolved and its affairs wound
up, upon the first to occur of any of the following events (each of which shall
constitute a Dissolution Event):
(a) the expiration of the term of the Agreement, unless the
Company is continued with the consent of Members holding at least a
majority of the Membership Interests; or
(b) the unanimous written consent of all of the Members,
without regard to whether or not a Member is a BHCA Member.
11.2 Effect of Dissolution. Upon dissolution, the Company shall not be
terminated and shall continue until the winding up of the affairs of the Company
is completed and a certificate of cancellation has been filed with the Office of
the Secretary of State of the State of Delaware.
11.3 Distribution of Assets on Dissolution. Upon the winding up of the
Company, the Members acting together (or such Person(s) designated by the
Members representing at least a majority of the Membership Interests) shall take
full account of the assets and liabilities of the Company, shall liquidate the
assets (unless the Members determine that a distribution of any Company Property
in-kind would be more advantageous to the Members than the sale thereof) as
promptly as is consistent with obtaining the fair value thereof, and shall apply
and distribute the proceeds therefrom in the following order:
(a) first, to the payment of the debts and liabilities of
the Company to creditors, including Members who are creditors, to the
extent permitted by law, in satisfaction of such debts and liabilities,
and to the payment of necessary expenses of liquidation;
(b) second, to the setting up of any reserves which the
Members may deem necessary or appropriate for any anticipated
obligations or contingencies of the Company arising out of or in
connection with the operation or business of the Company. Such reserves
may be paid over by the Members to an escrow agent or trustee selected
by the Members to be disbursed by such escrow agent or trustee in
payment of any of the aforementioned obligations or contingencies and,
if any balance remains at the expiration of such period as
-17-
the Members shall deem advisable, shall be distributed by such escrow
agent or trustee in the manner hereinafter provided;
(c) third, to the Members pro rata in accordance with and to
the extent of their positive Capital Account balances, if any;
(d) then, to the Members in accordance with their Membership
Interests.
Liquidation proceeds shall be paid within 60 days of the end of the
Company's taxable year in which the liquidation occurs. Such distributions shall
be in cash or Property (which need not be distributed proportionately) or partly
in both, as determined by the Board.
If at the time of liquidation the Members shall determine that an
immediate sale of some or all Company Property would cause undue loss to the
Members, the Members may, in order to avoid such loss, defer liquidation.
11.4 Winding Up and Filing Certificate of Cancellation. Upon the
commencement of the winding up of the Company, a certificate of cancellation
shall be delivered by the Company to the Secretary of State of the State of
Delaware for filing. The certificate of cancellation shall set forth the
information required by the Act. The winding up of the Company shall be
completed when all debts, liabilities and obligations of the Company have been
paid and discharged or reasonably adequate provision therefor has been made, and
all of the remaining Property of the Company has been distributed to the
Members.
ARTICLE XII
TRINITECH STOCK ISSUANCE AND PURCHASE OPTION
12.1 Trinitech Stock Issuance. As consideration for the Option (as
defined in Section 12.2 below) Trinitech shall, no later than upon its execution
and delivery of this Agreement, deliver to each Non-Trinitech Member the number
of shares of common stock of Trinitech set forth on such Member's respective
signature page hereto. Such shares will not initially be registered under the
Securities Act, and shall bear a legend to such effect, in the form determined
by Trinitech.
12.2 Trinitech Purchase Option. Trinitech shall have the option (the
"Option"), at any time and from time to time, to purchase the Units of
Membership Interest of the Non-Trinitech Members, such that Trinitech may
increase its Membership Interest to no more than 80% of the total Membership
Interest. Trinitech may exercise the Option through the exchange of one share of
Trinitech for each Unit to be purchased, subject to adjustment in the event of
any split, combination, reclassification or other adjustment to the capital
structure of Trinitech. Any Units purchased pursuant to the Option shall be
considered purchased pro rata from the Non-Trinitech Members according to their
Membership Interests.
-18-
ARTICLE XIII
MISCELLANEOUS
13.1 BHCA Membership Interest. Except as otherwise provided herein, for
the purposes of calculating the percentage Membership Interest in connection
with any vote required herein, each BHCA Member shall be deemed to have a
Membership Interest which shall be the lesser of (i) such BHCA Member's
Membership Interest or (ii) 4.99% of the total Membership Interest. Neither a
BHCA Member nor its Affiliates may request that such BHCA Member's Membership
Interest be increased unless such increase is permissible under the BHCA and the
Company may rely on a representation made by a BHCA Member to the Company to
such effect. Notwithstanding the foregoing, a BHCA Member's Membership Interest
shall never exceed such Member's Membership Interest.
13.2 Notices. Notices to the Company shall be sent to the
Administrative Office of the Company. Notices to the Members shall be sent to
the addresses set forth on their respective signature page. Any Member may
require notices to be sent to a different address by giving notice to the other
Members in accordance with this Section 13.2. Any notice or other communication
required or permitted hereunder shall be in writing, and shall be deemed to have
been given with receipt confirmed if and when delivered personally, given by
prepaid telegram or mailed first class, postage prepaid, delivered by courier,
or sent by facsimile, to such Members at such address.
13.3 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes any prior agreement or understanding between
them respecting the subject matter of this Agreement.
13.4 Saving Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
13.5 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.6 Governing Law. The Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
13.7 No Rights of Creditors and Third Parties under Agreement. The
Agreement is entered into among the Company and the Members for the exclusive
benefit of the Company, its Members and their successors and assignees. The
Agreement is expressly not intended for the benefit of any creditor of the
Company or any other person. Except and only to the extent provided by
applicable statute, no such creditor or any third party shall have any rights
under the Agreement or any agreement between the Company and any Member with
respect to any Capital Contribution or otherwise.
-19-
13.8 General Interpretive Principles. For purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Agreement include the plural
as well as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(b) accounting terms not otherwise defined herein have the
meanings given to them in the United States in accordance with GAAP consistently
applied;
(c) references herein to "Sections," "paragraphs" and other
subdivisions without reference to a document are to designated Sections,
paragraphs and other subdivisions of this Agreement;
(d) a reference to a paragraph without further reference to
a Section is a reference to such paragraph as contained in the same Section in
which the reference appears, and this rule shall also apply to other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
-20-
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands as of the Effective Date.
INVESTOR*
UBS (USA) Inc.
/s/ X.X. Xxxxx, Managing Director
---------------------------------
/s/ Per Dyrvik
--------------
Address: 000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
XXX
Membership Interest: 25,000 Units
Capital Contribution: $2,000,000
Number of Shares of Trinitech Systems, Inc.
issued in exchange for the Option 125,000 Shares
-------
*BHCA SPECIAL MEMBER
NYFIX MILLENNIUM, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Xxxxx X. Xxxxxx
Chairman
-21-
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands as of the Effective Date.
INVESTOR
/s/ Illegible
-----------------------------
Address: ING Barings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Membership Interest: 25,000 Units
Capital Contribution: $2,000,000
Number of Shares of Trinitech Systems, Inc.
issued in exchange for the Option 125,000 Shares
-------
NYFIX MILLENNIUM, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx
Chairman
-22-
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands as of the Effective Date.
INVESTOR*
SOCIETE GENERAL INVESTMENT CORPORATION
/s/ Illegible
--------------------------------
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Membership Interest: 25,000 Units
Capital Contribution: $2,000,000
Number of Shares of Trinitech Systems, Inc.
issued in exchange for the Option 125,000 Shares
-------
*BHCA SPECIAL MEMBER
NYFIX MILLENNIUM, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx
Chairman
-23-
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands as of the Effective Date.
INVESTOR
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
Address: 3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Membership Interest: 25,000 Units
Capital Contribution: $2,000,000
Number of Shares of Trinitech Systems, Inc.
issued in exchange for the Option 125,000 Shares
-------
NYFIX MILLENNIUM, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
Chairman
-24-
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands as of the Effective Date.
INVESTOR
MSDW Equity Investments Ltd.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
Address: MSDW Equity Investments Ltd.
Xxxxxx Xxxxxx
Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxx Xxxxxx
Membership Interest: 25,000 Units
Capital Contribution: $2,000,000
Number of Shares of Trinitech Systems, Inc.
issued in exchange for the Option 125,000 Shares
-------
NYFIX MILLENNIUM, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
Chairman
-25-
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands as of the Effective Date.
INVESTOR
DB U.S. FINANCIAL MARKETS HOLDING CORPORATION
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------------- ----------------------------
Xxxx X. Xxxxxx Xxxxx X. Xxxxxxx
Vice President and Treasurer Assistant Secretary
Address: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxx, Legal Dept.
Membership Interest: 25,000 Units
Capital Contribution: $2,000,000
Number of Shares of Trinitech Systems, Inc.
issued in exchange for the Option 125,000 Shares
-------
NYFIX MILLENNIUM, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
Chairman
-26-
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands as of the Effective Date.
INVESTOR
XXXXXXXX X. XXXXXXXXX & CO., INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Chairman
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Membership Interest: 25,000 Units
Capital Contribution: $2,000,000
Number of Shares of Trinitech Systems, Inc.
issued in exchange for the Option 125,000 Shares
-------
NYFIX MILLENNIUM, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
Chairman
-27-
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands as of the Effective Date.
NYFIX, INC. (formerly Trinitech Systems, Inc.)
By: /s/ Xxxxx Xxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx Xxxxxx
Title: Chairman of the Board and President
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Membership Interest: 175,000
Capital Contribution: $2,000,000
NYFIX MILLENNIUM, L.L.C.
By: /s/ Xxxxx Xxxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxxx Xxxxxx
Title: Chairman
-28-
