|
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
alt
| 
