AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER (“Merger Agreement”) dated as of October 31,
2007 by and between NMMS, LLC, a Delaware limited liability
company (“Newco”) and NYFIX MILLENNIUM, L.L.C., a
Delaware limited liability company (“Millennium”, together with Newco
being sometimes hereinafter collectively referred to as the “Constituent
Companies”).
WHEREAS,
Section 18-209 of the Delaware Limited Liability Company Act (the
“DLLCA”) authorizes the merger of one Delaware limited liability company
with and into another Delaware limited liability company; and
WHEREAS,
Newco is a limited liability company one hundred percent (100%) of the
membership interests in which (the “Newco Interests”) are held by NYFIX
Broker-Dealer Holdings, LLC (“NYFIX BD”); and
WHEREAS,
Millennium is a limited liability company, eighty percent (80%) of the
membership interests in which are held by NYFIX BD and the remaining twenty
percent (20%) of the membership interests in which are held by other interest
holders (collectively, the “Millennium Interests”); and
WHEREAS,
the sole member of Newco and members of Millennium holding more than fifty
percent (50%) of the current membership interests in Millennium have approved
the merger of Newco with and into Millennium (the “Merger”) on the terms
and conditions hereinafter set forth, subject to such further approvals and
actions as may be required under the law of the State of Delaware;
and
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
herein contained and of other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I
The
Merger
At
the
Effective Time in accordance with the provisions of this Merger Agreement and
the DLLCA, Newco shall be merged with and into Millennium and Millennium shall
be the surviving limited liability company (hereafter sometimes referred to
as
the “Surviving LLC”) and shall continue its limited liability company
existence under the laws of the State of Delaware. At the Effective
Time the separate existence of Newco shall cease. The holder of Newco
Interests at the Effective Time shall be the continuing holder of all Millennium
Interests after the Merger.
ARTICLE
II
Adoption,
Execution and Filing of Merger Agreement
(a) The
Merger shall not become effective until, and shall become effective at, 11:59
p.m. on October 31, 2007; provided that, prior to such time, a certificate
of
merger shall have been executed and accepted for filing in the office of the
Delaware Secretary of State in accordance with the DLLCA specifying such
effective time.
(b) The
date and time when the Merger shall become effective as described in Section
2(a) above is referred to as the “Effective Time.”
ARTICLE
III
Certificate
of Formation; Operating Agreements
At
the
Effective Time:
(a) The
certificate of formation of Millennium, as in effect immediately prior to the
Effective Time, shall be the certificate of formation of the Surviving LLC
(the
“Certificate of Formation”), and the name of the Surviving LLC shall be
“NYFIX Millennium, L.L.C.”
(b) The
operating agreement of Millennium, as in effect immediately prior to the
Effective Time, shall be the operating agreement of the Surviving LLC (the
“Operating Agreement”) until the Operating Agreement shall thereafter be
altered, amended or repealed in accordance with the DLLCA, the Certificate
of
Formation of the Surviving LLC and the Operating Agreement.
ARTICLE
IV
Officers
Each
director and officer of Millennium in office at the Effective Time shall
continue to be a director or officer of the Surviving LLC and shall hold office
from the Effective Time until his or her successor shall have been duly elected
and qualified, or as otherwise provided in the Operating Agreement.
ARTICLE
V
Manner
of Exchanging or Converting Interests
At
the
Effective Time:
(a) Conversion
of Newco Interests. At the Effective Time, the Newco
Interests outstanding shall be converted into one hundred percent
(100%) of the membership interests in the Surviving LLC.
(b) Millennium
Interests Converted into Right to Receive $72.727 Per Unit. At
the Effective Time, each Millennium Interest that shall be outstanding shall
by
virtue of the Merger and without further action be deemed cancelled and shall
be
converted into the right to receive, without interest, Seventy-Two and 727/000
Dollars ($72.727) per Unit of Millennium Interests (the “Merger
Consideration”); provided, however, that the holder of Newco
Interests shall not receive the Merger Consideration for its Units of Millennium
Interests and in lieu thereof NYFIX BD shall receive interests in the Surviving
LLC pursuant to Section 5(a) above as consideration for the
Merger.
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(c) Surrender
of Certificates. After the Effective Time each holder of an
outstanding certificate representing Units of Millennium Interests shall
surrender the same to the Surviving Company for cancellation.
ARTICLE
VI
Constituent
Companies
At
the
Effective Time, the Surviving LLC shall thereupon and thereafter possess all
the
properties, assets, rights, patents, trademarks, licenses, registrations,
privileges, powers, franchises and immunities of the Constituent
Companies. All debts, liabilities and obligations of the Constituent
Companies shall become the debts, liabilities and obligations of the Surviving
LLC; all rights of creditors and all liens on any property of the Constituent
Companies shall be preserved unimpaired; and all debts, liabilities and
obligations of the Constituent Companies shall thereafter attach to the
Surviving LLC and may be enforced against the Surviving LLC to the same extent
as if said debts, liabilities and obligations had been incurred or contracted
by
the Surviving LLC.
ARTICLE
VII
Termination
and Amendment
(a) Termination. This
Merger Agreement may be terminated and the Merger may be abandoned for any
reason at any time prior to the Effective Time by the mutual consent of the
sole
member of Newco, on the one hand, and the holders of more than fifty percent
(50%) of the current Millennium Interests, on the other hand.
(b) Amendment. By
mutual consent of the sole member of Newco, on the one hand, and the holders
of
more than fifty percent (50%) of the current Millennium Interests, on the other
hand, the Constituent Companies may amend, modify and/or supplement this Merger
Agreement; provided, however, that this Merger Agreement may not
be so amended, modified, or supplemented except pursuant to an instrument in
writing executed and delivered on behalf of the Constituent Companies, which
instrument, when so executed and delivered, shall thereupon become a part of
this Merger Agreement.
ARTICLE
VIII
Miscellaneous
(a) Counterparts. This
Merger Agreement may be executed in multiple counterparts, each of which shall
be an original, but all of which together shall constitute one and the same
instrument.
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(b) Governing
Law. This Merger Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(c) Other
Actions. Subject to the other provisions of this Merger
Agreement, each of the Constituent Companies agree to execute and deliver such
other documents, certificates, agreements and other writings and to take such
other actions as may be necessary or desirable to consummate the transactions
contemplated by this Merger Agreement.
(d) Headings. The
headings contained in this Merger Agreement are inserted for convenience of
reference only and are not intended to be part of, or affect the meaning or
interpretation of, the Merger Agreement.
(e) Notices. Any
notice, request, instruction or other communication to be given by any party
hereto to the other shall be in writing and shall be delivered personally or
sent by registered mail, postage prepaid, to such address as such party may
designate by written notice to the party giving such notice.
* * * *
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IN
WITNESS WHEREOF, each of the parties hereto has caused this Merger
Agreement to be signed in its limited liability company name by an authorized
representative of such Constituent Company, all as of the date first above
written.
NMMS, LLC | |||
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By:
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NYFIX
BROKER-DEALER HOLDINGS, LLC, its sole member
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By:
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/s/ Xxxxxxx Xxxxxxxx | |
Name: Xxxxxxx Xxxxxxxx | |||
Title: Sole Manager | |||
NYFIX
MILLENNIUM, L.L.C.
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By:
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/s/ Xxxxxx X. Xxxxxxxxx | |
Name: Xxxxxx X. Xxxxxxxxx | |||
Title: Chief Financial Officer | |||
[Signature
Page for Agreement and Plan of Merger of NNMS, LLC and NYFIX Millennium, LLC
dated as of October 31, 2007]
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