EXHIBIT 2.2
AMENDMENTS TO OPERATING AGREEMENT OF NYFIX MILLENNIUM, L.L.C. AS OF NOVEMBER 1,
2000
AMENDMENTS TO OPERATING AGREEMENT
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To enable NYFIX Millennium, L.L.C. (the "Company") to sell
additional membership interests on the terms consented to by the seven initial
investors, the following amendments to the Limited Liability Company Operating
Agreement of the Company are hereby made:
1. Two new definitions are hereby added to Article I of the
Agreement and read as follows:
"1.26 Second Traunche Dividend. A dividend of cash in an
amount equal to 1% of the Company's Profits in the fiscal
quarter immediately prior to the payment of such
dividend."
"1.27 Second Traunche Member. Each Member who became a
Member between November 1, 2000 and March 31, 2001. There
shall not be permitted more than five Second Traunche
Members."
2. To clarify the make-up of the Board of Directors of the
Company, Section 6.2 of the Agreement is hereby deleted in its
entirety and replaced with the following (to be effective as of
the inception of the Company):
"6.2 Board Members. (a) The Board of Directors of the
Company shall initially consist of voting directors
(collectively, the "Voting Directors") to be determined
as follows: (i) one to be designated by Trinitech, (ii)
one to be designated by the Members other than Trinitech
(the "Non-Trinitech Members"), (iii) one executive
officer of the Company to be designated by the Company
and (iv) two to be designated by the Advisory Directors
(as defined below). The Voting Directors may be changed
by the applicable designator(s) from time to time.
(b) In addition to the Voting Directors, the
Company shall also have a number of non-voting advisory
board members (collectively, the "Advisory Directors")
equal to the number of Non-Trinitech Members, such that
one Advisory Director shall be designated by each
Non-Trinitech Member. 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. The two Voting
Directors designated by the Advisory Directors shall
cast votes as instructed by a majority of the Advisory
Directors.
(c) 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 Members (i.e., a majority of the Members must
approve any change in the nature of the Company's
business or in the type of its customers).
(d) Notwithstanding anything to the contrary
contained in this Section 6.2, in the event Trinitech
exercises its Option pursuant to Article XII below, then
the Board of Directors shall consist of a total of five
(5) Voting Directors to be determined as follows: (i)
three to be designated by Trinitech, (ii) one executive
officer of the Company to be designated by the Company
and (iii) one to be designated by the Advisory Directors
to cast a vote as instructed by the majority of the
Advisory Directors. The designees may be changed by the
applicable designator(s) from time to time. The holders
of a majority of the Membership Interests may increase
or decrease (but not below five) the number of Voting
Directors."
3. Section 7.1 of the Agreement is hereby amended by (i)
deleting the term "Initial Members" in the two places it
appears and placing in its stead the term "Members" and (ii)
adding the following sentence to the end of such section:
"No further Capital Contribution shall be required of a
Member, except as agreed to by that Member."
4. Section 8.1(a) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(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 to the
Non-Trinitech Members in accordance with Section 8.5(a)
and the balance to Trinitech."
5. Section 8.1(b) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(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 Initial Members (other than Trinitech), in
proportion to their respective Membership
Interests, but only to the extent of their
respective Capital Account balances;
(ii) second, to the Second Traunche Members,
in proportion to their respective Membership
Interests, but only to the extent of their
respective Capital Account balances;
(iii) third, to Trinitech, but only to the
extent of its Capital Account balance; and
(iv) then, the balance, if any, among the
Members in proportion to their respective
Membership Interests."
6. Section 8.2(a) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"(a) Dividends. Distributions shall be made (i) to
the Initial Members (other than Trinitech) 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) except as provided to the Second
Traunche Members pursuant to Section 8.2(c) below, 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."
7. Section 8.2(b) of the Agreement is hereby amended by
deleting the term "Non-Trinitech Member" each time it
appears in such section and placing in its stead the phrase
"Initial Members (other than Trinitech)".
8. A new Section 8.2(c) is hereby added to the Agreement and
reads as follows:
"(c) Second Traunche Dividends. A Second Traunche
Dividend of 1% (see Section 1.26 above) shall be paid to
such Second Traunche Member out of the amounts that
would otherwise be paid to Trinitech pursuant to Section
8.2(a) above."
9. Section 8.5 of the Agreement is hereby deleted in its
entirety and replaced with the following:
"8.5 Allocations Relating to Non-Trinitech Member
Dividends.
(a) Any Initial Member or Second Traunche
Member allocated a Special Dividend or Second
Traunche Dividend, as the case may be, pursuant
to Section 8.2 shall also be allocated that
percentage of the Profits for the fiscal quarter
that relates to such Member's dividend.
(b) The amount of any Special Dividend or
Second Traunche Dividend, as the case may be,
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 Sections 8.2(b)
and 8.2(c)."
10. Section 10.2(c) of the Agreement is hereby amended by
inserting the words "If requested by the Board," at the
beginning of such Section.
