TO AMENDED AND RESTATED OPERATING AGREEMENT OF VAN DER MOOLEN SPECIALISTS USA, LLC Dated: July 1, 2006
Exhibit
4.9
THIRD
AMENDMENT
TO
AMENDED
AND RESTATED OPERATING AGREEMENT
OF
VAN
DER MOOLEN SPECIALISTS USA, LLC
Dated:
July 1, 2006
THIRD
AMENDMENT, dated July 1, 2006 (the “Amendment”), to the Amended
and Restated Operating Agreement, dated December 1, 2004, as amended by the
First Amendment, dated December 30, 2004, and the Second Amendment dated January
3, 2005 (the “Operating Agreement”), of Van der Moolen
Specialists USA, LLC, a New York limited liability company (the
“Company”), by and among the entity and individuals listed on
Schedule A hereto (each, a “Member” and collectively, the
“Members”).
WHEREAS,
Xxxxxx X. Xxxxxxxxxxx terminated as a Member of the Company effective as of
January 31, 2005; Xxxxxx Xxxxx and Xxxxxxx X. Xxxxx terminated as Members of
the
Company effective as of April 30, 2005; Xxxx F.X. Xxxxx, M. Xxxxxx Xxxxx and
Xxxxxx X. Xxxxxxxxx terminated as Members of the Company effective as of May
31,
2005; Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxxxxx X.
Xxxxx, and Xxxxxxxxxxx X. Xxxxx terminated as Members of the Company effective
as of June 30, 2005; Xxxxxx X. Xxxxxxx terminated as a Member of the Company
effective August 31, 2005; Xxxx X. Xxxxxxxx terminated as a Member of the
Company effective December 31, 2005 and Xxxxxxx X. Xxxxxxx terminated as a
Member of the Company effective March 31, 2006, and
WHEREAS,
Xxxxxx Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, and Xxxxxxx X. Xxxxx will
become Members of the Company as of the date of this Agreement, and the Members
have determined to compensate them as if they had become Members of the Company
on July 1, 2005; and
WHEREAS,
Xxxxxxx X. Xxxxxx will become a Member of the Company as of the date of this
Agreement, and the Members have determined to compensate him as if he had become
a Member of the Company on October 1, 2005; and
WHEREAS,
Xxxxxx X. Xxxxx, Xx. will become a Member of the Company as of the date of
this
Agreement, and the Members have determined to compensate him as if he had become
a Member of the Company on December 1, 2005; and
WHEREAS,
Xxxxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxx will become Members of the Company as of the date of this Agreement,
and
WHEREAS,
The Members have determined to: (i) allocate a portion of the Float Percentage
among the Members; (ii) revise the Profit and Loss Percentages of Members;
(iii)
reduce the Stated Capital of the Company from $* to $* million; (iv) amend
Schedule A to the Operating Agreement of the Company to reflect the foregoing
changes, (v) revise Section 4.2 of the Operating Agreement (“Withdrawals of
Capital”), and (vi) revise Section 5.5 of the Operating Agreement
(“Indemnification”).
NOW,
THEREFORE, in consideration of the foregoing premises and the terms and
conditions set forth in this Amendment, the Members hereby agree as
follows:
1. Capitalized
terms used but not defined herein shall have the meanings ascribed to such
terms
in the Operating Agreement.
2. Xxxxxx
Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, and Xxxxxxx X. Xxxxx will become
Members of the Company as of the date of this Agreement, and will be compensated
as if they had become Members of the Company on July 1, 2005. Xxxxxxx
X. Xxxxxx will become a Member of the Company as of the date of this Agreement,
and will be compensated as if he had become a Member of the Company on October
1, 2005. Xxxxxx X. Xxxxx, Xx. will become a Member of the Company as
of the date of this Agreement, and will be compensated as if he had become
a
Member of the Company on December 1, 2005. Xxxxxxx X. Xxxxxxx,
Xxxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx will
become Members of the Company as of the date of this Agreement.
3. Schedule
A to the Operating Agreement is hereby deleted and Schedule A annexed to this
Amendment shall be substituted therefor.
4. Section
4.2 of the Operating Agreement (“Withdrawals of Capital”) shall be amended to
read as follows:
Section
4.2. Withdrawals of Capital. In addition to the
distributions provided for in Section 4.1, a Member may request a distribution
of his capital from the Company. The Management Committee may approve
such a request in whole or part subject to satisfaction of each of the following
conditions: (1) the Management Committee, in its sole and absolute discretion,
determines that the payment of the distribution is in the best interest of
the
Company given the circumstances prevailing at the time and taking into account
such economic, business, regulatory and other facts and considerations as the
Management Committee may deem relevant, (2) without the prior written approval
of the NYSE, no portion of a Member’s capital may be withdrawn by the Member
on
2
less
than
six-months written notice of such withdrawal given no sooner than six months
after such capital was contributed to the Company, (3) assuming the distribution
to the Member of his capital, the Company is in compliance with Rule 15c3-1
under the 34 Act, and (4) the distribution does not reduce the
Member’s Capital Account below his Stated Capital.
5. Section
5.5 of the Operating Agreement (“Indemnification”) shall be amended to read as
follows:
Section
5.5. Indemnification.
(a) The
Company shall indemnify and hold harmless any person (the “Indemnified
Party”) who becomes a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, by reason of such
Indemnified Party’s activities on behalf of the Company, whether as a Member of
the Company or a member of the Management Committee, or as an officer,
shareholder, member, director, agent or employee of either such Member, against
losses, damages, claims or expenses actually and reasonably incurred by the
Indemnified Party in connection with such action, suit or proceeding, for which
such Indemnified Party has not otherwise been reimbursed (including reasonable
attorneys’ fees, judgments, fines and amounts paid in settlement), if such
Indemnified Party acted, in good faith, for a purpose which he or she reasonably
believed to be in, (or, in the case of service undertaken at the request of
the
Company for any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise,) not opposed to, the best interests
of the Company and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe that his or her conduct was unlawful; provided,
however, that no indemnification may be made to or on behalf of any Indemnified
Party if a judgment or other final adjudication adverse to such Indemnified
Party establishes (i) that his or her acts were committed in bad faith or were
the result of active and deliberate dishonesty and were material to the cause
of
action so adjudicated, or (ii) that such person personally gained a financial
profit or other advantage to which he or she was not legally
entitled.
(b) The
Company shall indemnify or advance expenses in accordance with Section 5.5(a)
above to any Indemnified Person; provided, however, that such expenses shall
be
paid only upon prior receipt by the Company of an undertaking, by or on behalf
of such Indemnified Person and satisfactory in form and substance to the
Company, to repay any such amount so reimbursed or advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such Indemnified Person is not entitled to be
indemnified for such expenses in accordance with the provisions of paragraph
(a)
above. The Company’s obligation to pay any such reimbursement or
advance is also subject to its prior receipt of documentation reasonably
satisfactory to it of the nature and amount of any such
expenses. Upon any such ultimate determination that the Indemnified
Person is not entitled to be indemnified, the Indemnified Person
shall
3
forthwith
repay to the Company all amounts so reimbursed or advanced to such Indemnified
Person hereunder.
(c) The
members of the Management Committee shall not be liable to the Company or the
Members (i) for mistakes of judgment or for any act or omission suffered or
taken by it, or for losses due to any such mistakes, action or inaction, except
to the extent that the mistake, action, or inaction was caused by the gross
negligence or willful misconduct of such member of the Management Committee
or
(ii) for the willful misfeasance, negligence, bad faith or other conduct of
any
independent contractor of the Company selected by the Management Committee,
provided that such independent contractor was selected, engaged or retained
and
continued in good faith.
(d) A
member of the Management Committee may consult with legal counsel or accountants
selected in each case by the Management Committee and any action or omission
suffered or taken in good faith in reliance and accordance with the written
opinion or advice of any such counsel or accountants (provided such have been
selected with reasonable care) shall be full protection and justification with
respect to the action or omission so suffered or taken.
(e) In
the event that any Member shall, notwithstanding the provisions of Section
609
of the Act to the contrary (and solely as a result of the inapplicability,
or
deemed inapplicability of such provision of the Act), become liable under a
judgment, decree or order of a court, or in any other manner, for a debt,
obligation or liability of the Company, then the Company shall indemnify such
Member and hold such Member harmless from and against any such liability of
such
Member (together with reasonable attorneys’ fees and expenses in defending
against any claimant seeking to impose any such liability) to the extent that
it
related to or arose out of any action taken or any transaction effected by
the
Management Committee under this Agreement or any action which the Management
Committee failed to take or any transaction which the Management Committee
failed to effect and which the Members or the Management Committee was obligated
to take or effect under this Agreement. Nothing in the preceding
provisions of this paragraph shall affect the rights of the Company against
a
Member for the acts or omissions to act of that Member.
(f) Neither
a Member nor a member of the Management Committee shall be personally liable
to
any other Member for any payment to the other Member with respect to the other
Member’s interest in the Company, any and all of which payments shall be made
solely from, and to the extent of, the Company’s assets.
[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]
4
IN
WITNESS
WHEREOF, the Members have executed this Amendment which may be signed in
counterparts which, when taken together, shall constitute one and the same
Amendment, as of the date and year first written above.
| MILL BRIDGE IV, LLC | ||
| By: | ||
| Name: | ||
|
XXXXXX
XXXXXX
|
XXXXX
X. XXXXX
|
|
|
XXXXXXX
X. XXXXXXX
|
XXXXXXXX
X. XXXXXXXX
|
|
|
XXXXX
X. CAMANELLA
|
XXXXXXX
X. XXXXXXXX
|
|
|
XXXXXXX
CLOSE, II
|
XXXXXX
X. XXXXX, XX.
|
|
|
XXXXXXXXXXX
X. XXXXXXXX
|
XXXXX
X. XXXXXXX, XX.
|
|
|
XXXXXX
X. XXXXXXXX
|
XXXX
X. XXXXXXX
|
5
|
XXXXXXXX
X. XXXXXXXX
|
XXXXXX
X. XXXXXXXXX
|
|
|
XXXXXX
X. XXXXXXX
|
XXXXXXX
X. XXXXX
|
|
|
XXXXXX
X. XXXXXXXXX
|
XXXXXX
XXXXXXXX
|
|
|
XXXX
X. XXXXXXX
|
XXXXX
X. XXXXXX
|
|
|
XXXXXXX
X. XXXXXXX
|
XXXXXXX
X. XXXXXXXXXX
|
|
|
XXXXX
X. XXXXXXXX
|
XXXXXXX
X. XXXXXXXXX
|
|
|
XXXXX
X. XXXXXXX
|
XXXXX
X. XXXXXX
|
|
|
XXXXX
X. XXXXXXX
|
XXXXX
XXXXXXXX
|
6
|
XXXX
X. XXXXXXX
|
XXXXXXXX
X. XXXXXXX
|
|
|
XXXX
X. XXXXXX
|
XXXXXX
XXXXX
|
|
|
XXXXXXX
X. XXXXX
|
XXXXXX
X. XXXXXXXXXX
|
|
|
XXXXXX
X. XXXXXXX
|
XXXXX
X. XXXXXXX
|
|
|
XXXXXX
X. XXXXXXX
|
XXXXX
X. XXXXXXXXX
|
|
|
XXXXXX
X. XXXXXX
|
XXXXXXX
X. XXXXXXX
|
|
|
XXXXXXX
X. XXXXXXX
|
XXXXXXX
X. XXXXXX
|
|
|
XXXXXXX
X. XXXXXX
|
XXXXXXX
X. XXXXXX
|
7
|
XXXXX
X. XXXXXXXXXX
|
XXXXX
X. XXXXX
|
|
|
XXXXXX
X. XXXXXXXXX, III
|
XXXX
X. XXXXXXXX
|
|
|
XXXXXX
X. XXXXXXX
|
XXXXXX
X. XXXXXXX
|
|
|
XXXXXX
XXXXXXXX
|
XXXXXX
X. XXXXXXXXXXX
|
|
|
XXXX
X. XXXXXX
|
XXXXXXX
X. XXXXX
|
|
8
Schedule
A
to
AMENDED
AND RESTATED OPERATING AGREEMENT
of
VAN
DER MOOLEN SPECIALISTS USA, LLC
Dated:
as of July 1, 2006
|
MEMBERS
|
|||
|
Name
|
Address
|
Stated
Capital
($)
|
Profit
and Loss
Percentage
(%)
|
|
Mill
Bridge IV, LLC
|
00
Xxxxxxxx, 00xx Xx.
Xxx
Xxxx, XX 00000
|
*
|
75.0000
|
|
Xxxxxx
Xxxxxx
|
*
Xxxxxx
Xxxxxx, XX 00000
|
*
|
*
|
|
Xxxxx
X. Xxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxxxxx
Xxxxxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. Xxxxxxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
Close, II
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxx, Xx.
|
*
|
*
|
*
|
|
Xxxxxxxxxxx
X. Xxxxxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. XxXxxxx, Xx.
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxxxxx
|
*
|
*
|
*
|
|
Xxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxxxxx
X. Xxxxxxxx
|
*
|
*
|
*
|
ii
|
MEMBERS
|
|||
|
Name
|
Address
|
Stated
Capital
($)
|
Profit
and Loss
Percentage
(%)
|
|
Xxxxxx
X. Xxxxxxxxx
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxx
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxxxxxx
|
*
|
*
|
*
|
|
Xxxxxx
Xxxxxxxx
|
*
|
*
|
*
|
|
Xxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. Xxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxxxxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. Xxxxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. XxXxxxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. XxXxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. Xxxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxx
Xxxxxxxx
|
*
|
*
|
*
|
|
Xxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxx
X. Xxxxx
|
*
|
*
|
*
|
|
Xxxxxx
Xxxxx
|
*
|
*
|
*
|
iii
|
MEMBERS
|
|||
|
Name
|
Address
|
Stated
Capital
($)
|
Profit
and Loss
Percentage
(%)
|
|
Xxxxxxx
X. Xxxxx
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxxxxxxx
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. Xxxxxxxxx
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. Xxxxxxxxxx
|
*
|
*
|
*
|
|
Xxxxx
X. Xxxxx
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxxxxxx III
|
*
|
*
|
*
|
|
Xxxx
X. Xxxxxxxx
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
iv
|
MEMBERS
|
|||
|
Name
|
Address
|
Stated
Capital
($)
|
Profit
and Loss
Percentage
(%)
|
|
Xxxxxx
X. Xxxxxxx
|
*
|
*
|
*
|
|
Xxxxxx
Xxxxxxxx
|
*
|
*
|
*
|
|
Xxxxxx
X. Xxxxxxxxxxx
|
*
|
*
|
*
|
|
Xxxx
X. Xxxxxx
|
*
|
*
|
*
|
|
Xxxxxxx
X. Xxxxx
|
*
|
*
|
*
|
|
Float
Percentage
|
*
|
*
|
|
|
TOTAL
|
*
|
*
|
|
v
