EXHIBIT 10.32
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is entered into
as of December 30, 2004, by and among NYFIX, INC., a Delaware corporation (the
"COMPANY"), and WHITEBOX CONVERTIBLE ARBITRAGE PARTNERS, L.P. a British Virgin
Islands limited partnership (the "INVESTOR").
R E C I T A L S :
WHEREAS, the Company has entered into that certain Purchase
Agreement, dated as of the date hereof (the "PURCHASE AGREEMENT") with the
Investor pursuant to which the Company has agreed to issue and sell to Investor
a convertible promissory note (the "NOTE");
WHEREAS, the Company has agreed to grant certain registration rights
with respect to the shares of the Company's Common Stock issuable pursuant to
the Note, including upon conversion of the Note or upon payment on the Note with
the Company's Common Stock;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the following
respective meanings:
1.1 "COMMISSION" shall mean the U.S. Securities and Exchange
Commission or any other successor federal agency at the time administering the
Securities Act.
1.2 "COMMON STOCK" shall mean the Company's common stock, $0.001 par
value per share.
1.3 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
1.4 "HOLDERS" shall mean and include the Investor and any transferee
thereof who holds Registrable Securities of record.
1.5 "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing with the Commission a registration
statement in compliance with the Securities Act, and the declaration or ordering
by the Commission of the effectiveness of such registration statement.
1.6 "REGISTRABLE SECURITIES" means any and all shares of Common
Stock: (i) issued or issuable pursuant to the provisions of the Note, including
upon conversion of the Note or upon payment on the Note, or (ii) issued or
issuable with respect to the Common Stock referred to in clause (i) above upon
any stock split, stock dividend, recapitalization, reclassification, merger,
consolidation or other similar event. The term "Registrable Securities" shall
exclude in all cases, however, such shares of Common Stock (i) following their
sale by a Holder to the public pursuant to a registered offering or pursuant to
Rule 144 (or any similar provision then in force) promulgated under the
Securities Act, (ii) once they are otherwise freely transferable without
restriction pursuant to Rule 144(k) under the Securities Act or (iii) sold in a
private transaction in which the Holder's registration rights under this
Agreement are not assigned.
1.7 "REGISTRATION EXPENSES" shall mean all reasonable and customary
expenses incurred by the Company in complying with Articles 2 and 3 hereof,
including, without limitation, all registration, qualification and Commission,
National Association of Securities Dealers, Inc., stock exchange and other
filing fees, printing expenses, duplication expenses relating to copies of any
registration statement or prospectus delivered to any Holders, escrow fees, fees
and disbursements of legal counsel for the Company, blue sky fees and expenses,
and the expense of any audits incident to or required by any such registration
(but excluding the compensation of employees and officers of the Company, which
shall be paid in any event by the Company).
1.8 "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
1.9 "SELLING EXPENSES" shall mean all underwriting fees, discounts,
selling commissions and stock transfer taxes applicable to the Registrable
Securities registered by the Holders and the fees and expenses of any special
counsel engaged by the Holders.
1.10 "UNDERWRITER" shall mean (whether or not the term is
capitalized) a broker-dealer engaged by the Company to distribute Registrable
Securities as principal or agent.
1.11 "UNDERWRITING" or "UNDERWRITTEN" shall mean (whether or not the
term is capitalized) a method of publicly distributing securities through an
Underwriter.
ARTICLE 2
REQUIRED REGISTRATION
2.1 REQUIRED REGISTRATION. Not later than June 30, 2005 (the "FILING
DATE," unless a majority in interest of the Holders request a delay of the
filing for up to an additional 60 days in writing and in such case, upon
expiration of this requested delaying period), the Company will prepare and file
with the Commission a registration statement under the Securities Act covering
all of the Registrable Securities and use its reasonable best efforts to obtain
the effectiveness of such registration as soon as practicable as would permit or
facilitate the original issuance or subsequent resale and distribution of all of
such Registrable Securities. If, however, the Company shall furnish to the
Holders a certificate signed by the President of the Company within thirty (30)
days of the Filing Date stating that, in the good faith judgment of the Board of
Directors of the Company, a material acquisition or disposition by the Company
is being negotiated or has been publicly announced or that such registration
statement would have a material detrimental effect on the Company, then the
Company shall have the right to defer such filing for a period of not more than
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sixty (60) days after the Filing Date. Such registration statement shall contain
(unless the Holders otherwise direct) substantially the "Plan of Distribution"
attached hereto as ANNEX A. The Company's failure to obtain effectiveness of
this registration statement by September 30, 2005 (the "Registration Deadline")
(subject to an extension of such Registration Deadline to correspond to the
extension of the Filing Date, if any, granted by the Holders above, or to
correspond to the right of the Company to defer the Filing Date in accordance
with this Section 2.1 and subject to delays incurred by any Holder's failure to
comply with the provisions of Section 5(b) below) will commence the running of
the first "Failure Term" as defined in Section 6 of the Note. Each Holder agrees
that if the Company determines that there are material developments which the
Company determines require the filing of a post-effective amendment to the
registration statement, then each Holder agrees to refrain from selling any
Registrable Securities until the post-effective amendment is declared effective.
The Company agrees to file and attempt to have declared effective such
post-effective amendment as soon as possible.
2.2 UNDERWRITING.
(a) The resale distribution of the Registrable Securities covered by
the registration statement referred to in Section 2.1 above shall be effected by
means of the method of distribution selected by the Holders holding a majority
of the Registrable Securities covered by such registration. The Holders holding
a majority of the Registrable Securities may also change the resale distribution
method from time to time (subject to amendment of the registration statement at
the expense of the Holders as required to describe such changes). If such
distribution is effected by means of an underwriting, the right of any Holder to
registration pursuant to this Article 2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein.
(b) If such distribution is effected by means of an underwriting,
the Company (together with all Holders proposing to distribute their securities
through such underwriting) shall enter into an underwriting agreement in
customary form with a managing underwriter of nationally recognized standing
selected for such underwriting by the Company and approved by a majority in
interest of the Holders, which approval shall not be unreasonably withheld.
(c) If any Holder disapproves of the terms of the underwriting, such
person may elect to withdraw therefrom by written notice to the Company, the
managing underwriter and the other Holders. The Registrable Securities and/or
other securities so withdrawn shall also be withdrawn from registration.
2.3 INCLUSION OF SHARES BY THE COMPANY. If the resale distribution
of Registrable Securities is being effected by means of an underwriting and if
the managing underwriter will not limit the number of Registrable Securities to
be underwritten, the Company may include securities for its own account or for
the account of others in such registration if the managing underwriter so agrees
and shall include securities for the account of others ("Other Holders") in such
registration as required by the Company's contractual obligations existing as of
the Closing Date to holders of the Company's securities. The inclusion of such
shares shall be on the same terms as the registration of shares held by the
Holders. If the managing underwriter decides that the number of Registrable
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Securities proposed to be sold in such registration exceeds the number of
securities that can be sold in such offering without an adverse effect on such
offering, the Company will include in such registration only the number of
Registrable Securities that, in the opinion of the underwriter, can be sold,
selected pro rata among the Holders and the Other Holders based on the number of
shares they had originally proposed to register; provided, however, that no
securities for the Company or any other holders (other than the Other Holders)
shall be included in such registration unless all of the Registrable Securities
of the Holders are included.
ARTICLE 3
COMPANY REGISTRATION
3.1 NOTICE OF REGISTRATION TO HOLDERS. If at any time or from time
to time commencing after the date hereof, the Company shall determine to
register any of its securities, either for its own account or the account of a
security holder or holders, other than (i) a registration relating solely to
employee benefit plans on Form S-8 (or any successor form), (ii) a registration
relating solely to a Commission Rule 145 transaction on Form S-4 (or any
successor form) or (iii) a registration on any form that does not permit
secondary sales, the Company will:
(a) promptly give to each Holder written notice thereof and
(b) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within 15 days after receipt of such written notice from the
Company described in Section 3.1(a), by any Holder or Holders, but only to the
extent that the original issuance or resale distribution of such Registrable
Securities is not already covered by an effective registration statement under
Article 2 above.
3.2 UNDERWRITING.
(a) If the registration of which the Company gives notice is for an
offering involving an underwriting, the Company shall so advise the Holders as a
part of the written notice given pursuant to Section 3.1(a). In such event, the
right of any Holder to registration pursuant to this Article 3 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by the Company.
(b) Notwithstanding any other provision of this Article 3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the underwriter may exclude some or all
Registrable Securities from such registration and underwriting. The Company
shall so advise all Holders of Registrable Securities, and the number of shares
of Common Stock to be included in such registration shall be allocated as
follows: first, for the account of the Company, all shares of Common Stock
proposed to be sold by the Company; and second, for the account of the Holders
and any other shareholders of the Company participating in such registration,
the number of shares of Common Stock requested to be included in the
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registration by the Holders and such other shareholders in proportion, as nearly
as practicable, to the respective amounts of Registrable Securities that are
proposed to be offered and sold by the Holders and such other shareholders of
Common Stock at the time of filing the registration statement. No Registrable
Securities or other shares of Common Stock excluded from the underwriting in
this Article 3 by reason of the underwriters' marketing limitation shall be
included in such registration.
(c) The Company shall so advise all Holders and the other holders
distributing their securities through such underwriting of any such limitation,
and the number of shares of Registrable Securities held by Holders that may be
included in the registration. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the managing underwriter. Any securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration, but the Holder
shall continue to be bound by the terms hereof.
(d) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Article 3 prior to the effectiveness of
such registration, whether or not a Holder has elected to include Registrable
Securities in such registration.
ARTICLE 4
EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to Articles 2 and 3 hereof
and the reasonable fees of one counsel for the Holders of Registrable Securities
in the case of registration pursuant to Article 2 hereof (up to $20,000) shall
be borne by the Company. All Selling Expenses relating to Registrable Securities
registered by the Holders shall be borne by the Holders of such Registrable
Securities pro rata on the basis of the number of shares so registered.
ARTICLE 5
REGISTRATION PROCEDURES
(a) In the case of each registration effected by the Company
pursuant to this Agreement, the Company will keep each Holder advised in writing
as to the initiation of each registration and as to the completion thereof. The
Company agrees to use its reasonable best efforts to effect or cause such
registration to permit the sale of the Registrable Securities covered thereby by
the Holders thereof in accordance with the intended method or methods of
distribution thereof described in such registration statement. In connection
with any registration of any Registrable Securities, the Company shall:
(i) prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement filed
to become effective;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness of such registration statement as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement
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(provided, however, that the Company shall not be obliged to
maintain the effectiveness of such registration statement longer
than through the earlier of (A) the date on which the Holder may
sell all Registrable Securities then held by the Holder, or which
may become issuable upon conversion of the Note or upon payment on
the Note, without restriction by the volume limitations of Rule
144(e) of the Securities Act or (B) such time as all Registrable
Securities held by such Holder, or which may become issuable
pursuant to the provisions of the Note, have been sold pursuant to a
registration statement), and furnish to the holders of the
Registrable Securities covered thereby copies of any such supplement
or amendment prior to its use and/or filing with the Commission;
(iii) promptly notify the Holders of Registrable Securities to
be included in a registration statement hereunder, the sales or
placement agent, if any, therefor and the managing underwriter of
the securities being sold, and confirm such advice in writing, (A)
when such registration statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such registration
statement or any post-effective amendment, when the same has become
effective, (B) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the
initiation of any proceedings for that purpose, (C) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose or (D) if, to the Company's knowledge, it shall be the
case, at any time when a prospectus is required to be delivered
under the Securities Act, that such registration statement or
prospectus, or any document incorporated by reference in any of the
foregoing, contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(iv) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities included
in such registration statement for sale in any jurisdiction at the
earliest practicable date;
(v) furnish to each Holder of Registrable Securities to be
included in such registration statement hereunder, each placement or
sales agent, if any, therefor and each underwriter, if any, thereof,
without charge, a conformed copy of such registration statement and
any amendment and supplement thereto (in each case including all
exhibits and documents incorporated by reference) and such number of
copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus),
and any amendment or supplement thereto, as such Holder, agent, if
any, and underwriter, if any, may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by
such Holder sold by such agent or underwritten by such underwriter
and to permit such Holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act;
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(vi) use its reasonable best efforts to (A) register or
qualify the Registrable Securities to be included in such
registration statement under such other securities laws or blue sky
laws of such states of the United States or the District of Columbia
to be designated by the Holders of a majority of such Registrable
Securities participating in such registration and each placement or
sales agent, if any, therefor and underwriter, if any, thereof, as
any Holder and each underwriter, if any, of the securities being
sold shall reasonably request (provided, that the Company shall not
be required to register or qualify the Registrable Securities in
more than 15 such jurisdictions unless the expenses thereof are
borne by the Holders requesting such efforts), (B) keep such
registrations or qualifications in effect and comply with such laws
at all times during the period described in Section 5(a)(ii) above,
and (C) take any and all such actions as may be reasonably necessary
to enable such Holder, agent, if any, and underwriter to consummate
the disposition in such jurisdictions of such Registrable
Securities; provided, however, that in order to fulfill the
foregoing obligations under this Section 5(a)(vi), the Company shall
not (unless otherwise required to do so in any jurisdiction) be
required to (1) qualify generally to do business as a foreign
company or a broker-dealer, (2) execute a general consent to service
of process or (3) subject itself to taxation; and
(vii) furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that
the registration statement with respect to such securities becomes
effective, (i) an opinion, dated as of such date, of the counsel
representing the Company for the purposes of such registration, in
form and substance as is customarily given to underwriters in an
underwritten public offering and reasonably satisfactory to a
majority in interest of the Holders requesting registration,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated as of
such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an
underwritten public offering and reasonably satisfactory to a
majority in interest of the Holders requesting registration,
addressed to the underwriters, if any, and if permitted by
applicable accounting standards, to the Holders requesting
registration of Registrable Securities.
(b) The Company may require each Holder of Registrable Securities as
to which any registration is being effected to furnish in writing to the Company
such information regarding such Holder and such Holder's method of distribution
of such Registrable Securities as the Company may from time to time reasonably
request. Each such Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously furnished by
such Holder to the Company or of the occurrence of any event in either case as a
result of which any prospectus relating to such registration contains or would
contain an untrue statement of a material fact regarding such Holder or the
distribution of such Registrable Securities or omits to state any material fact
regarding such Holder or the distribution of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to the Company any additional information required to correct and update any
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previously furnished information or required so that such prospectus shall not
contain, with respect to such Holder or the distribution of such Registrable
Securities, an untrue statement or a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
(c) Each of the Holders will comply with the provisions of the
Securities Act with respect to disposition of the Registrable Securities to be
included in any registration statement filed by the Company.
ARTICLE 6
INDEMNIFICATION
6.1 The Company will indemnify each Holder, each of its officers,
directors and partners, and such Holder's legal counsel and independent
accountants, if any, and each person controlling any such persons within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement or
prospectus, or any amendment or supplement thereof, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
the Company of any rule or regulation promulgated under the Securities Act or
any state securities laws applicable to the Company and relating to action or
inaction by the Company in connection with any such registration, qualification
or compliance, and will reimburse each such Holder, each of its officers,
directors and partners and such Holder's legal counsel and independent
accountants, and each person controlling any such persons, each such underwriter
and each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by such Holder, officers, directors, partners, legal counsel,
accountants, underwriter or controlling persons, and expressly intended for use
in such registration statement or prospectus, or any amendment or supplement
thereof.
6.2 Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and its legal counsel and independent accountants, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers, directors, partners, legal counsel and independent accountants, if
any, and each person controlling such Holder within the meaning of Section 15 of
the Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
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incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement or prospectus, or any
amendment or supplement thereto, or based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse the Company, such
Holders, such directors, officers, partners, legal counsel, independent
accountants, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement or
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Holder and expressly
intended for use in such registration statement or prospectus, or any amendment
or supplement thereof; provided, however, that the obligations of each Holder
hereunder shall be limited to an amount equal to the proceeds to such Holder of
Registrable Securities sold as contemplated herein.
6.3 Each party entitled to indemnification under this Section 6 (the
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld). The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall bear the expense
of such defense of the Indemnified Party if representation of both parties by
the same counsel would be inappropriate due to actual or potential conflicts of
interest. The failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Agreement, unless such failure is prejudicial to the ability of the Indemnifying
Party to defend the action. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect of such
claim or litigation.
6.4 If the indemnification provided for in Section 6.1 or 6.2 is
unavailable or insufficient to hold harmless an Indemnified Party, then each
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of the expenses, claims, losses, damages or
liabilities (or actions or proceedings in respect thereof) referred to in
Section 6.1 or 6.2, in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the sellers of Registrable Securities
on the other hand in connection with statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) or expenses, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the sellers of Registrable Securities and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company and the
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Holders agree that it would not be just and equitable if contributions pursuant
to this Section 6.4 were to be determined by pro rata allocation (even if all
sellers of Registrable Securities were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to in the first sentence of this Section 6.4.
The amount paid by an Indemnified Party as a result of the expenses, claims,
losses, damages or liabilities (or actions or proceedings in respect thereof)
referred to in the first sentence of this Section 6.4 shall be deemed to include
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any claim, action or proceeding which
is the subject of this Section 6.4. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of sellers of Registrable
Securities to contribute pursuant to this Section 6.4 shall be several in
proportion to the respective amount of Registrable Securities sold by them
pursuant to a registration statement.
ARTICLE 7
RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
securities of the Company to the public without registration, the Company agrees
to use its reasonable best efforts to:
7.1 Make and keep public information regarding the Company available
as those terms are understood and defined in Rule 144 under the Securities Act,
at all times after the date hereof; and
7.2 File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act.
ARTICLE 8
TRANSFER OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities
under this Agreement may be assigned by a Holder to Whitebox Advisors, LLC
("WHITEBOX") or to a transferee or assignee of Registrable Securities that (i)
is a subsidiary, parent or affiliated entity, general partner or limited
partner, member or retired partner or member of a Holder or of Whitebox, (ii) is
an affiliated fund, a follow-on fund or predecessor fund of a Holder or a
related fund or of Whitebox or (iii) is a Holder's family member or trust for
the benefit of an individual Holder; provided, however, (A) the transferor shall
furnish to the Company written notice of the name and address of such transferee
or assignee and the securities with respect to which such registration rights
are being assigned prior to such transfer and (B) such transferee shall agree in
writing to be subject to all restrictions set forth in this Agreement. In each
case, such rights may only be transferred together with the underlying
Registrable Securities in a transfer permitted by the Securities Act and
applicable state securities laws. Any such transferee or assignee shall be
deemed a Holder hereunder.
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ARTICLE 9
LIMITATIONS ON REGISTRATION RIGHTS GRANTED TO OTHER SECURITIES
From and after the date of this Agreement, the Company shall not,
without the prior written consent of the holders of a majority of the
Registrable Securities then outstanding, enter into any agreement with any
holder or prospective holder of any securities of the Company providing for the
grant to such holder of registration rights superior to those granted herein.
ARTICLE 10
MISCELLANEOUS
10.1 GOVERNING LAW. The laws of the state of New York shall govern
the interpretation, validity and performance of the terms of this agreement,
regardless of the law that might be applied under principles of conflicts of
law. The Company consents to the personal jurisdiction and forum convenience of
the state and federal courts located in Hennepin County, Minnesota, with respect
to any action by a Holder to enforce the provisions of this Agreement. The
Holder consents to the personal jurisdiction and forum convenience of the state
and federal courts located in the Borough of Manhattan, New York County, New
York, with respect to any action by the Company to enforce the provisions of
this Agreement.
10.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors and assigns of each of the parties hereto and shall inure
to the benefit of and be binding upon each Holder of any Registrable Securities.
10.3 ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof.
10.4 TERMINATION. The obligations of the Company to register
Registrable Securities under this Agreement for a Holder shall terminate on the
date hereafter when (i) such Holder (together with its affiliates, partners,
members and former partners and members) holds less than 1% of the Company's
outstanding Common Stock and (ii) all Registrable Securities held by or issuable
to such Holder (and its affiliates, partners, members and former partners and
members) pursuant to the provisions of the Note may be sold under Rule 144(k)
during any 90 day period.
10.5 NOTICES. All notices, requests, consents, and other
communications hereunder shall be made in writing and shall be deemed given (i)
when made if made by hand delivery, (ii) one business day after being deposited
with an overnight courier if made by courier guaranteeing overnight delivery or
(iii) on the date indicated on the notice of receipt if made by first-class
mail, return receipt requested, addressed as follows:
(a) if to the Company, at
NYFIX, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
11
with a copy to:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
(b) if to the Purchaser, in care of:
Whitebox Advisors, LLC
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxx Xxxx, Chief Financial Officer
with a copy to:
Xxxxxxxx & Xxxxxx P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(c) if to a Holder, to the address reflected on the records of the
Company, or such other address or addresses as shall have been furnished in
writing by such party to the Company and to the other parties to this Agreement.
10.6 SEVERABILITY. The invalidity, illegality or unenforceability of
one or more of the provisions of this Agreement in any jurisdiction shall not
affect the validity, legality or enforceability of the remainder of this
Agreement in such jurisdiction or the validity, legality or enforceability of
this Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
10.7 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
10.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
10.9 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified or supplemented in any respect only by written agreement by the Company
and Holders representing at least a majority of the Registrable Securities,
voting together as a single class; provided, that no such amendment shall
unfairly discriminate against a particular Holder relative to the other Holders.
Any action taken by the Holders, as provided in this Section 10.9, shall bind
all Holders.
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IN WITNESS WHEREOF, the undersigned have hereunto affixed their
signatures.
NYFIX, INC. WHITEBOX CONVERTIBLE ARBITRAGE
PARTNERS, L.P.
By /s/ Xxxxx X. Xxxxxx By /s/ Xxxxxx Xxxxxxx
------------------------- -------------------------------
Its Chief Executive Officer Its Managing Director
ANNEX A
PLAN OF DISTRIBUTION
We are registering the shares offered by this prospectus on behalf
of the selling shareholders. The selling shareholders, which as used herein
includes donees, pledgees, transferees or other successors-in-interest selling
shares of common stock or interests in shares of common stock received after the
date of this prospectus from a selling shareholder as a gift, pledge,
partnership distribution or other transfer, may, from time to time, sell,
transfer or otherwise dispose of any or all of their shares of common stock or
interests in shares of common stock on any stock exchange, market or trading
facility on which the shares are traded or in private transactions. These
dispositions may be at fixed prices, at prevailing market prices at the time of
sale, at prices related to the prevailing market price, at varying prices
determined at the time of sale, or at negotiated prices.
The selling shareholders may use any one or more of the following
methods when disposing of shares or interests therein:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell
the shares as agent, but may position and resell a portion of
the block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o short sales;
o through the writing or settlement of options or other hedging
transactions, whether through an options exchange or
otherwise;
o broker-dealers may agree with the selling shareholders to
sell a specified number of such shares at a stipulated price
per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling shareholders may, from time to time, pledge or grant a
security interest in some or all of the shares of common stock owned by them
and, if they default in the performance of their secured obligations, the
pledgees or secured parties may offer and sell the shares of common stock, from
time to time, under this prospectus, or under an amendment to this prospectus
under Rule 424(b)(3) or other applicable provision of the Securities Act
amending the list of selling shareholders to include the pledgee, transferee or
other successors in interest as selling shareholders under this prospectus. The
selling shareholders also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of our common stock or interests
therein, the selling shareholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn engage in
short sales of the common stock in the course of hedging the positions they
assume. The selling shareholders may also sell shares of our common stock short
and deliver these securities to close out their short positions, or loan or
pledge the common stock to broker-dealers that in turn may sell these
securities. The selling shareholders may also enter into option or other
transactions with broker-dealers or other financial institutions or the creation
of one or more derivative securities which require the delivery to such
broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
The aggregate proceeds to the selling shareholders from the sale of
the common stock offered by them will be the purchase price of the common stock
less discounts or commissions, if any. Each of the selling shareholders reserves
the right to accept and, together with their agents from time to time, to
reject, in whole or in part, any proposed purchase of common stock to be made
directly or through agents. We will not receive any of the proceeds from this
offering.
The selling shareholders also may resell all or a portion of the
shares in open market transactions in reliance upon Rule 144 under the
Securities Act of 1933, provided that they meet the criteria and conform to the
requirements of that rule.
The selling shareholders and any broker-dealers that act in
connection with the sale of securities might be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, and any commissions
received by such broker-dealers and any profit on the resale of the securities
sold by them while acting as principals might be deemed to be underwriting
discounts or commissions under the Securities Act.
To the extent required, the shares of our common stock to be sold,
the names of the selling shareholders, the respective purchase prices and public
offering prices, the names of any agents, dealer or underwriter, and any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement that includes this
prospectus.
In order to comply with the securities laws of some states, if
applicable, the common stock may be sold in these jurisdictions only through
registered or licensed brokers or dealers. In addition, in some states the
common stock may not be sold unless it has been registered or qualified for sale
or an exemption from registration or qualification requirements is available and
is complied with.
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We have advised the selling shareholders that the anti-manipulation
rules of Regulation M under the Exchange Act may apply to sales of shares in the
market and to the activities of the selling shareholders and their affiliates.
In addition, we will make copies of this prospectus (as it may be supplemented
or amended from time to time) available to the selling shareholders for the
purpose of satisfying the prospectus delivery requirements of the Securities
Act. The selling shareholders may indemnify any broker-dealer that participates
in transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act.
We have agreed to indemnify the selling shareholders against
liabilities, including liabilities under the Securities Act and state securities
laws, relating to the registration of the shares offered by this prospectus.
We have agreed with the selling shareholders to keep the
registration statement that includes this prospectus effective until the earlier
of (1) such time as all of the shares covered by this prospectus have been
disposed of pursuant to and in accordance with the registration statement or (2)
the date on which the shares may be sold pursuant to Rule 144(k) of the
Securities Act.
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