EXHIBIT 10.34
AGREEMENT TO AMEND
CONVERTIBLE PROMISSORY NOTE AND REGISTRATION
RIGHTS AGREEMENT AND TO WAIVE BREACHES
This AGREEMENT TO AMEND CONVERTIBLE PROMISSORY NOTE AND REGISTRATION
RIGHTS AGREEMENT AND TO WAIVE BREACHES is executed on and effective as of the
24th day of June, 2005 by and between NYFIX, Inc. ("NYFIX") and Whitebox
Convertible Arbitrage Partners L.P ("Whitebox" and, with NYFIX, the "Parties").
WHEREAS, NYFIX and Whitebox entered into that certain Purchase
Agreement dated as of December 30, 2004, as amended on March 30, 2005 (the
"Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, NYFIX issued to
Whitebox that certain Unsecured Convertible Promissory Note dated as of December
30, 2004 in the principal amount of Seven Million Five Hundred Thousand Dollars
($7,500,000) (the "Note");
WHEREAS, NYFIX and Whitebox entered into that certain Registration
Rights Agreement dated as of December 30, 2004 (the "Registration Rights
Agreement");
WHEREAS, questions have arisen regarding the rights and obligations
of the respective Parties under the Purchase Agreement, the Note and the
Registration Rights Agreement; and
WHEREAS, NYFIX and Whitebox wish to resolve these questions to their
mutual satisfaction.
NOW THEREFORE, in consideration of the above premises, in order to
resolve the aforementioned questions, and in consideration of the covenants and
promises contained herein, the Parties hereto agree as follows:
1. The first sentence of Section 4(b) of the Note is hereby
deleted in its entirety and replaced with the following:
"The 'Conversion Rate' initially shall be
$5.75 (an amount equal to the product of (i)
the average (rounded to the nearest $.01) of
the closing prices of Maker's Common Stock
on the Trading System for the five
consecutive trading days immediately
preceding the date hereof, and (ii) 1.16).
."
2. The first sentence of Section 5(a) of the Note is hereby
deleted in its entirely and replaced with the following:
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"If, at any time while any portion of the
principal or interest of this Note is
outstanding, the closing price of the
Maker's Common Stock has exceeded 150% of
the Conversion Rate (as computed in Section
4(a) above and subject to adjustment
pursuant to Sections 4(b) and 4(c)) for at
least 10 trading days in the 30-trading day
period ending within five trading days prior
to the date of the Maker's Notice, and
provided that the Maker has, pursuant to the
terms of the Registration Rights Agreement,
an effective registration statement under
the Act and applicable state securities laws
covering the public resale of such shares by
Payee, then Maker may elect to cause
automatic conversion of all or any portion
of the outstanding principal and/or accrued
but unpaid interest on this Note into shares
of the Maker's Common Stock based on the
Conversion Rate (as computed in Section 4(a)
above and subject to adjustment pursuant to
Sections 4(b) and 4(c)).
3. Section 2.1 of the Registration Rights Agreement is hereby
amended as follows:
Reference to "June 30, 2005" in the first sentence is changed
to "December 31, 2005" and reference to "September 30, 2005" in
the fourth sentence is changed to "March 31, 2006."
4. Whitebox agrees to waive any and all breaches and defaults by
NYFIX of or under the Purchase Agreement, the Registration
Rights Agreement or the Note that occurred from December 30,
2004 up to and including the date of execution and
effectiveness of this Agreement.
5. Except as set forth herein, all provisions of the Purchase
Agreement, Registration Rights Agreement and the Note remain in
full force and effect.
6. 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.
Acknowledged and agreed by:
NYFIX, INC. WHITEBOX CONVERTIBLE ARBITRAGE
PARTNERS, L.P.
By /s/ Xxxx X. Xxxx By /s/ Xxxxxx Xxxxxxx
---------------------------- -----------------------------
Its Chief Financial Officer Its Whitebox Advisors, LLC
(Managing Member)
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