AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 2 TO RIGHTS AGREEMENT
THIS
AMENDMENT NO. 2 TO RIGHTS AGREEMENT (this “Amendment”),
dated
as of September 4, 2006, amends the Rights Agreement dated as of September
1,
1997, between NYFIX, Inc., a Delaware corporation (the “Company”),
and
Mellon Investor Services LLC (f/k/a ChaseMellon Shareholder Services, L.L.C.),
as Rights Agent (the “Rights
Agent”),
as
amended by Amendment No. 1 to Rights Agreement, dated October 25, 1999 (as
so
amended, the “Rights
Agreement”).
Terms
defined in the Rights Agreement and not otherwise defined herein are used herein
as so defined.
WHEREAS,
the Company and the Rights Agent entered into the Rights Agreement, providing
for, among other things, the issuance of Rights to purchase one-hundredth of
a
Preference Share to owners of the common stock of the Company upon the
occurrence of certain events;
WHEREAS,
the Board of Directors of the Company has deemed it in the best interest of
the
Company to exempt the proposed transaction pursuant to the Securities Purchase
Agreement, to be dated as of even date herewith (the “Securities
Purchase Agreement”),
between the Company and Warburg Pincus Private Equity IX, L.P., as described
below, from triggering the issuance of Rights to purchase one-hundredth of
a
Preference Share under the Rights Agreement;
WHEREAS,
this Amendment is being entered into prior to the execution and delivery of
the
Securities Purchase Agreement; and
WHEREAS,
pursuant to Section 27 of the Rights Agreement, the Company and the Rights
Agent
desire to amend the Rights Agreement as set forth below;
NOW,
THEREFORE, the Rights Agreement is hereby amended as follows:
1.
Amendment
of Definition of “Acquiring Person.”
a. Section
1(a) of the Rights Agreement is hereby amended by adding the following at the
end of such section:
“Notwithstanding
the foregoing, the term ‘Acquiring Person’ shall not include Warburg Pincus
Private Equity IX, L.P. or its affiliates (“WP”),
provided
that WP
shall not be in breach of Section 8.7 of the Securities Purchase Agreement,
dated September 4, 2006, between the Company and WP.”
b. Section
18 of the Rights Agreement is hereby amended by adding the word “punitive,”
after “special,” in the last sentence of the first paragraph so that the
sentence reads as follows:
“In
no
case will the Rights Agent be liable for special, punitive, indirect, incidental
or consequential loss or damage of any kind whatsoever (including by not
limited
to lost profit), even if the Rights Agent has been advised of the possibility
of
such loss or damage.”
2.
Effectiveness.
This
Amendment shall be deemed effective as of the date set forth above as if
executed by both parties hereto on such date, provided that this Amendment
shall
no longer be effective if the Securities Purchase Agreement is terminated in
accordance with its terms. Except as amended hereby, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected
hereby.
3.
Miscellaneous.
This
Amendment shall be deemed to be a contract made under the laws of the State
of
New York and for all purposes shall be governed by and construed in accordance
with the laws of such state applicable to contracts to be made and performed
entirely within such state. This Amendment may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to
be
an original, and all such counterparts shall together constitute but one and
the
same instrument. If any term, provision, covenant or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to
be
invalid, illegal, or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
2
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first set forth above.
| NYFIX, INC. | ||
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| By: | /s/ Xxxxxx X. Xxxxxxxxx | |
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Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial
Officer
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| MELLON INVESTOR SERVICES LLC | ||
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|
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| By: | /s/ Xxxx Xxx | |
|
Name: Xxxx Xxx
Title: Vice President, Client Relationship
Executive
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