Unassociated Document


     

    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	 
	 	 	 	 
	 	 	 	 
	
               

            	
              By:
                

            	
              NYFIX
                BROKER-DEALER HOLDINGS, LLC, its sole member

            	 
	 	 	 	 


    

    
      	 	 	 	 
	
               

            	
              By:
                

            	/s/ Anthony
              Portelli	 
	 	 	Name:
              Anthony Portelli 	 
	 	 	Title:
              Sole Manager 	 
	 	 	 	 
	 	 	 	 


      	 	
              NYFIX
                MILLENNIUM, L.L.C.

            	 
	 	 	 	 
	 	 	 	 
	
               

            	
              By:
                

            	/s/ Steven
              R. Vigliotti	 
	 	 	Name:
              Steven R. Vigliotti 	 
	 	 	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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