NYFIX, INC. REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.2
NYFIX,
INC.
REGISTRATION
RIGHTS AGREEMENT, dated as of October 12, 2006 (this “Agreement”), among the
investors whose names and addresses appear from time to time listed on
Schedule
I
hereto
(the “Investors”) and NYFIX, Inc., a Delaware corporation (the “Company”).
Capitalized terms used in this Agreement but not otherwise defined herein
shall
have the meaning set forth in the Purchase Agreement (as defined
herein).
RECITALS
WHEREAS,
the Investors have, pursuant to the terms of the Purchase Agreement, agreed
to
purchase shares of Series B Voting Convertible Preferred Stock, par value $1.00
per share (the “Convertible Preferred Stock”), of the Company;
WHEREAS,
the Company has authorized the issuance of Series C Non-Voting Convertible
Preferred Stock, par value $1.00 per share (the “Exchange Preferred
Stock”);
WHEREAS,
the shares of Convertible Preferred Stock and Exchange Preferred Stock are
convertible into shares of Common Stock;
WHEREAS,
the Company has agreed to grant the Investors certain registration rights;
and
WHEREAS,
the Company and the Investors desire to define the registration rights of the
Investors on the terms and subject to the conditions herein set
forth.
NOW,
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the parties hereby agree as follows:
SECTION
1. DEFINITIONS
As
used
in this Agreement, the following terms have the respective meanings set forth
below:
Agreement:
shall
mean this Registration Rights Agreement among the Investors and the Company,
as
the same may be amended or modified from time to time in accordance with its
terms;
Commission:
shall
mean the Securities and Exchange Commission or any other federal agency at
the
time administering the Securities Act;
Demanding
Holders:
shall
have the meaning set forth in Section 2(b)(ii);
Exchange
Act:
shall
mean the Securities Exchange Act of 1934, as amended (or any successor act),
and
the rules and regulations promulgated thereunder;
Holder:
shall
mean each Investor that holds Registrable Securities, any transferee or assignee
thereof to whom an Investor assigns its rights under this Agreement and who
agrees to become bound by the provisions of this Agreement in accordance with
Section 3(f) and any transferee or assignee thereof to whom a transferee or
assignee assigns its rights under this Agreement and who agrees to become bound
by the provisions of this Agreement in accordance with Section
3(f);
Indemnified
Party:
shall
have the meaning set forth in Section 2(f)(iii);
Indemnifying
Party:
shall
have the meaning set forth in Section 2(f)(iii);
Initiating
Holder(s):
shall
mean the Investors who in the aggregate are the Holders of more than 50% of
all
the outstanding Registrable Securities held by the Investors;
Other
Stockholders:
shall
have the meaning set forth in Section 2(a);
Purchase
Agreement:
shall
mean the Purchase Agreement, dated as of September 4, 2006, among the Company
and the Investors (as defined therein), as the same may be amended or modified
from time to time in accordance with its terms;
Person:
shall
mean an individual, partnership, joint-stock company, corporation, limited
liability company, trust or unincorporated organization, and a government or
agency or political subdivision thereof;
Register,
Registered
and
Registration:
shall
mean a registration effected by preparing and filing a registration statement
in
compliance with the Securities Act (and any post-effective amendments filed
or
required to be filed) and the declaration or ordering of effectiveness of such
registration statement by the Commission;
Registrable
Securities:
shall
mean (A) shares of Common Stock issuable upon conversion of the shares of
Convertible Preferred Stock or Exchange Preferred Stock, (B)
any
other shares of Common Stock held or hereafter acquired by the Investors,
including any shares of Common Stock issuable upon exchangeable or convertible
Securities and
(C)
any Common Stock of the Company issued as a dividend or other distribution
with
respect to, or in exchange for or in replacement of, the shares of Convertible
Preferred Stock, Exchange Preferred Stock or Common Stock referred to in clause
(A); provided,
however, that the foregoing definition shall exclude in all cases any
Registrable Securities sold by a Person in a transaction in which such Person’s
rights under this Agreement are not assigned or any Registrable Securities
for
which registration rights have terminated pursuant to Section 2(j); provided,
further, that “Registrable
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Securities”
shall not at any time include any Securities (i) registered and sold pursuant
to
the Securities Act or (ii) sold pursuant to Rule 144 under the Securities Act.
Registration
Expenses:
shall
mean all expenses incurred by the Company in compliance with Sections 2(a),
(b)
and (c) hereof, including, without limitation, all registration and filing
fees,
printing expenses, reasonable fees and disbursements of counsel for the Company,
reasonable fees and expenses of one counsel for all the Holders (which counsel
shall be chosen by the Initiating Holder(s)), reasonable blue sky fees and
expenses and the reasonable expense of any special audits incident to or
required by any such Registration (but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the
Company);
Registration
Period:
shall
have the meaning set forth in Section 2(e)(i);
Rule
144:
shall
have the meaning set forth in Section 2(h)(i);
Security,
Securities:
shall
have the meaning set forth in Section 2(1) of the Securities Act;
Securities
Act:
shall
mean the Securities Act of 1933, as amended (or any successor act), and the
rules and regulations promulgated thereunder; and
Selling
Expenses:
shall
mean all underwriting discounts and selling commissions applicable to the sale
of Registrable Securities, all stamp duty and transfer taxes, if any, and all
fees and disbursements of counsel for each of the Holders other than the
reasonable fees and expenses of one counsel for all the Holders.
SECTION
2. REGISTRATION RIGHTS
(a) Requested
Registration.
(i) Request
for Registration.
If the
Company shall receive
a
written request that the Company effect any Registration with respect to all
or
a part of the Registrable Securities from an Initiating Holder, at any time
on
or after the first anniversary of the date hereof, the Company
will:
(1) promptly
give written notice of the proposed Registration to all other Holders;
and
(2) as
soon
as practicable, use its reasonable best efforts to effect such Registration
as
may be so requested and as would permit or facilitate the sale and distribution
of all or such portion of such Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of
any
other Holder or Holders joining in such request as are specified in a written
request received by the Company within ten (10) business days after written
notice from the Company is given
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under
Section 2(a)(i)(1) above; provided
that the
Company shall not be obligated to effect, or take any action to
effect:
(A) any
such
Registration pursuant to this Section 2(a) in any particular jurisdiction in
which the Company would be required to execute a general consent to service
of
process in effecting such Registration, unless the Company is already subject
to
service in such jurisdiction and except as may be required by the Securities
Act
or applicable rules or regulations thereunder;
(B) any
such
Registration pursuant to this Section 2(a), if the Company has effected two
(2)
such Registrations pursuant to this Section 2(a) and such Registrations have
been declared or ordered effective;
(C) any
such
Registration pursuant to this Section 2(a) if the Registrable Securities
requested by
all
Holders to be registered pursuant to any such request have an anticipated
aggregate public offering price (before deduction of any Selling Expenses)
of
less than $5,000,000;
(D) any
such
Registration pursuant to this Section 2(a) during the period starting with
the
date sixty (60) days prior to the Company’s good faith estimate of the date of
filing of, and ending on the date six (6) months immediately following the
effective date of, any registration statement pertaining to Securities of the
Company (other than a registration of Securities in a Rule 145 transaction
under
the Securities Act or with respect to an employee benefit plan), provided
that the
Company is actively employing in good faith all reasonable efforts to cause
such
registration statement to become effective; provided,
however,
that
the Company may only delay an offering pursuant to this Section 2(a)(i)(2)(D)
for a period of not more than sixty (60) days, if a filing of any other
registration statement is not made within that period, and the Company may
only
exercise this right once in any twelve (12) month period; or
(E) any
such
Registration pursuant to this Section 2(a) if the Company shall furnish to
the
Holders a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors it would
be
seriously detrimental to the Company or its stockholders for a registration
statement to be filed in the near future, in which case the Company’s obligation
to use its reasonable best efforts to comply with this Section 2 shall be
deferred for a period not to exceed ninety (90) days from the date of receipt
of
written request from the Holders; provided,
however,
that
the Company shall not exercise such right more than once in any twelve (12)
month period.
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The
registration statement filed pursuant to the request of the Initiating Holder(s)
pursuant to Section 2(a)(i) may, subject to the provisions of Section 2(a)(ii)
below, include other Securities of the Company which are held by Persons who,
by
virtue of agreements with the Company, are entitled to include their Securities
in any such Registration (“Other Stockholders”). In the event any Holder
requests a Registration pursuant to this Section 2(a) in connection with a
distribution of Registrable Securities to its partners or members, the
Registration shall provide for the resale by such partners or members, if
requested by such Holder.
(ii) Underwriting.
If the
Initiating Holder(s) intend to distribute the Registrable Securities covered
by
their request by means of an underwriting, they shall so advise the Company
as a
part of their request made pursuant to Section 2(a).
In such
event, the right of any Holder to include such Holder’s Registrable Securities
in such Registration shall be conditioned upon such Holder’s participation in
the underwriting to the extent provided herein. If Other Stockholders request
inclusion of their Securities in the underwriting, the Holders shall offer
to
include the Securities of such Other Stockholders in the underwriting and may
condition such offer on their acceptance of the further applicable provisions
of
this Section 2. The Holders whose shares are to be included in such Registration
and the Company shall (together with all Other Stockholders proposing to
distribute their Securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Initiating
Holder(s) and reasonably acceptable to the Company; provided,
however,
that
such underwriting agreement shall not provide for indemnification or
contribution obligations on the part of the Holders materially greater than
the
obligations of the Holders under Section 2(f)(ii) hereof. Notwithstanding any
other provision of this Section 2(a), if the representative of the underwriter
advises the Holders in writing that marketing factors require a limitation
on
the number of shares to be underwritten, the Securities held by Other
Stockholders shall be excluded from such Registration to the extent so required
by such limitation. If, after the exclusion of such Securities held by Other
Stockholders, further reductions are still required, the number of Registrable
Securities included in the Registration by each Holder shall be reduced on
a pro
rata basis (based on the number of Registrable Securities held by such Holder),
by such minimum number of Registrable Securities as is necessary to comply
with
such request. No Registrable Securities or any other Securities excluded from
the underwriting by reason of the underwriter’s marketing limitation shall be
included in such Registration. If any Other Stockholder who has requested
inclusion in such Registration as provided above disapproves of the terms of
the
underwriting, such Person may elect to withdraw therefrom by providing prompt
written notice to the Company, the underwriter and the Initiating Holder(s).
The
Securities so withdrawn shall also be withdrawn from Registration. In addition
to the other rights of the Holders contained herein, if the underwriter has
not
limited the number of Registrable Securities or other Securities to be
underwritten, the Company and officers and directors of the Company may include
its or their Securities for its or their own account in such Registration if
the
representative of the underwriter so agrees and if the number of Registrable
Securities and other Securities which would otherwise have been included in
such
Registration and underwriting will not thereby be limited.
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(b) Company
Registration.
(i)
Inclusion
in Registration.
If at
any time on or after the first anniversary of the date hereof, the Company
shall
determine to register any of its equity Securities either for its own account
or
for the account of any Other Stockholder in any public offering solely for
cash,
other than a registration relating solely to employee benefit plans, or a
registration relating solely to a Rule 145 transaction under the Securities
Act,
or a registration on any registration form which does not permit secondary
sales
or does not include substantially the same information as would be required
to
be included in a registration statement covering the sale of Registrable
Securities, the Company will:
(1) promptly
give to each of the Holders a written notice thereof (which shall include a
list
of the jurisdictions in which the Company intends to attempt to qualify such
Securities under the applicable blue sky or other state securities laws);
and
(2) 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 by the Holders
within fifteen (15) days after mailing of the written notice from the Company
described in Section 2(b)(i)(1) above, except as set forth in Section 2(b)(ii)
below. Such written request may specify to include in such Registration all
or a
part of the Holders’ respective Registrable Securities. In the event any Holder
requests inclusion in a Registration pursuant to this Section 2(b) in connection
with a distribution of Registrable Securities to its partners or members, the
Registration shall provide for the resale by such partners or members, if
requested by such Holder. Notwithstanding the foregoing, the Company shall
have
the right to terminate or withdraw any Registration initiated by it under this
Section 2(b) prior to effectiveness of such Registration whether or not any
Holder has elected to include Securities in such Registration.
(ii) Underwriting.
If the
Registration of which the Company gives notice is for a registered public
offering involving an underwriting, the Company shall so advise each of the
Holders as a part of the written notice given pursuant to Section 2(b)(i)(1).
In
such event, the right of each of the Holders to Registration pursuant to this
Section 2(b) shall be conditioned upon such Holders’ participation in such
underwriting and the inclusion of such Holders’ Registrable Securities in the
underwriting to the extent provided herein. The Holders whose shares are to
be
included in such Registration shall (together with the Company and the Other
Stockholders distributing their Securities through such underwriting) enter
into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for underwriting by the Company;
provided,
however,
that
such underwriting agreement shall not provide for indemnification or
contribution obligations on the part of the Holders materially greater than
the
obligations of the Holders under Section 2(f)(ii) hereof. Notwithstanding any
other provision of this Section 2(b), if the representative determines that
marketing factors require a limitation on the number of shares to be
underwritten, the Company shall promptly advise all holders of Securities
requesting Registration of such limitation,
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and
the
number of such shares of Securities that are entitled to be included in the
Registration and underwriting shall be allocated in the following manner: the
Securities of the Company held by officers, directors and Other Stockholders
of
the Company (other than Registrable Securities and other than Securities held
by
holders who by contractual right demanded such Registration (“Demanding
Holders”)) shall be excluded from such Registration and underwriting to the
extent required by such limitation, and, if a limitation on the number of shares
is still required, the number of shares that may be included in the Registration
and underwriting by each of the Holders and Demanding Holders shall be reduced,
on a pro rata basis (based on the number of shares of Common Stock of the
Company beneficially held by such Holder), by such minimum number of shares
as
is necessary to comply with such limitation. If any of the Holders or any
officer, director or Other Stockholder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by providing prompt written
notice to the Company and the underwriter. Any Registrable Securities or other
Securities excluded or withdrawn from such underwriting shall be withdrawn
from
such Registration.
(c) Form
S-3.
At any
time on or after the first anniversary of the date hereof, the Initiating
Holder(s) shall have the right to request three (3) Registrations on Form S-3
(such requests shall be in writing and shall state the number of shares of
Registrable Securities to be disposed of and the intended method of disposition
of shares by such holders), provided
that the
Company shall not be obligated to effect, or take any action to effect, any
such
Registration pursuant to this Section 2(c):
(i)
unless
the Holder or Holders requesting Registration propose to dispose of shares
of
Registrable Securities having an aggregate price to the public (before deduction
of any Selling Expenses) of more than $5,000,000;
(ii) within
one hundred eighty (180) days of the effective date of the most recent
Registration pursuant to this Section 2(c) in which Securities held by the
requesting Holder could have been included for sale or
distribution;
(iii) in
any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such Registration,
qualification or compliance, unless the Company is already subject to service
in
such jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder;
(iv) during
the period starting with the date sixty (60) days prior to the Company’s good
faith estimate of the date of filing of, and ending on the date six (6) months
immediately following the effective date of, any registration statement
pertaining to Securities of the Company (other than a Registration of Securities
in a Rule 145 transaction under the Securities Act or with respect to an
employee benefit plan), provided
that the
Company is actively employing in good faith all reasonable efforts to cause
such
registration statement to become effective; provided,
however,
that
the Company may only delay an offering pursuant to this Section 2(c)(iv) for
a
period of not more than sixty (60) days, if a filing of any other registration
statement is not made
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within
that period, and the Company may only exercise this right once in any twelve
(12) month period;
(v) if
the
Company shall furnish to the Holder(s) requesting a registration certificate
signed by the Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental
to
the Company or its stockholders for a registration statement to be filed in
the
near future, in which case the Company’s obligation to use its reasonable best
efforts to comply with this Section 2(c) shall be deferred for a period not
to
exceed ninety (90) days from the date of receipt of written request from the
Initiating Holder(s); provided,
however,
that
the Company shall not exercise such right more than once in any twelve (12)
month period; or
(vi) if
Form
S-3 is not then available for such offering by the Holders.
The
Company shall give written notice to all Holders of the receipt of a request
for
Registration pursuant to this Section 2(c) and shall provide a reasonable
opportunity for other Holders to participate in the Registration, provided
that if
the Registration is for an underwritten offering, the terms of Section 2(a)(ii)
shall apply to all participants in such offering. Subject to the foregoing,
the
Company will use its reasonable best efforts to effect promptly the Registration
of all shares of Registrable Securities on Form S-3 to the extent requested
by
the Holder or Holders thereof for purposes of disposition. In the event any
Holder requests a Registration pursuant to this Section 2(c) in connection
with
a distribution of Registrable Securities to its partners or members, the
Registration shall provide for the resale by such partners or members, if
requested by such Holder.
(d) Expenses
of Registration.
All
Registration Expenses incurred in connection with any Registration,
qualification or compliance pursuant to this Section 2 shall be borne by the
Company, and all Selling Expenses shall be borne by the Holders of the
Securities so registered pro rata on the basis of the number of their shares
so
registered other than fees and expenses of counsel, which, to the extent not
included in Registration Expenses, shall be borne by the Holder incurring such
fees and expenses of counsel (or if incurred by a Holder or Holders on behalf
of
one or more Holders, pro rata on the basis of the amounts of their shares so
Registered). The Company shall not, however, be required to pay for expenses
of
any Registration begun pursuant to Section 2(a) or 2(c), the request for which
has been subsequently withdrawn by the Initiating Holders unless (a) the
withdrawal is based upon material adverse information concerning the Company
of
which the Initiating Holders were not aware at the time of such request or
(b)
the Holders of 66⅔% of Registrable Securities agree to forfeit their right to
one requested Registration pursuant to Section 2(a) or Section 2(c), as
applicable, in which event such right shall be forfeited by all
Holders.
(e) Registration
Procedures.
In the
case of each Registration effected by the Company pursuant to this Section
2,
the Company shall advise the Holders, as applicable, in writing as to the
initiation of each Registration and as to the completion thereof. At its
expense, the Company will:
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(i)
keep
such
Registration effective for a period of one hundred twenty (120) days or until
the Holders (or in the case of a distribution to the partners or members of
such
Holder, such partners or members), as applicable, have completed the
distribution described in the registration statement relating thereto, whichever
first occurs; provided,
however,
that,
in the case of any Registration of Registrable Securities on Form S-3 which
are
intended to be offered on a continuous or delayed basis, such one hundred and
twenty (120) day period shall be extended until all such Registrable Securities
are sold, provided
that
Rule 415, or any successor rule under the Securities Act, permits an offering
on
a continuous or delayed basis, and provided
further
that applicable rules under the Securities Act governing the obligation to
file
a post-effective amendment permit, in lieu of filing a post-effective amendment
which (y) includes any prospectus required by Section 10(a) of the Securities
Act or (z) reflects facts or events representing a material or fundamental
change in the information set forth in the registration statement, the
incorporation by reference of information required to be included in (y) and
(z)
above to be contained in periodic reports filed pursuant to Section 12 or 15(d)
of the Exchange Act in the registration statement;
provided,
however, that the Company shall not be required to keep any registration
statement effective for a period in excess of twenty-four (24) months (such
period, the “Registration Period”); provided,
further, that at any time, upon written notice to the Holders and for a period
not to exceed sixty (60) days thereafter (the “Suspension
Period”),
the
Company may delay the filing or effectiveness of any registration statement
or
suspend the use or effectiveness of any registration statement (and the Holders
hereby agree not to offer or sell any Registrable Securities pursuant to such
registration statement during the Suspension Period) if (1) the Board of
Directors of the Company reasonably determines that the Company may, in the
absence of such delay or suspension hereunder, be required under state or
federal securities laws to disclose any corporate development the disclosure
of
which could reasonably be expected to have a material adverse effect upon the
Company, its stockholders, a potentially significant transaction or event
involving the Company, or any negotiations, discussions, or proposals directly
relating thereto or (2) the Company delivers a notice to the applicable Holders
pursuant to Section 2(e)(iv). No more than two (2) such Suspension Periods
shall
occur in any twelve (12) month period. The Company may extend the Suspension
Period for an additional consecutive sixty (60) days with the consent of the
Holders of a majority of the Registrable Securities registered under the
applicable registration statement, which consent shall not be unreasonably
withheld.
(ii) permit
one legal counsel to the Holders (which counsel shall be chosen by the Holders)
to review and comment upon a registration statement filed pursuant to Section
2
and all amendments and supplements thereto at least three (3) days prior to
their filing with the Commission, and not file any document in a form to which
such legal counsel to the Holders reasonably objects;
(iii) furnish
to each Holder whose Registrable Securities are included in any registration
statement, without charge, (a) promptly after the same is prepared and filed
with the Commission, at least one copy of such registration statement and any
amendment(s) thereto, including financial statements and schedules, and if
requested by a
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Holder,
all documents incorporated therein by reference and all exhibits thereto, (b)
upon the effectiveness of any registration statement, ten (10) copies of the
prospectus included in such registration statement and all amendments and
supplements thereto (or such other number of copies as such Holder may
reasonably request) and (c) such other documents, including copies of any
preliminary or final prospectus, as such Holder may reasonably request form
time
to time in order to facilitate the disposition of the Registrable Securities
owned by such Holder;
(iv) notify
each Holder of Registrable Securities covered by such Registration at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to
be
stated therein or necessary to make the statements therein, in the light of
the
circumstances under which they were made, not misleading, and, subject to
Section 2(e)(i), promptly prepare a supplement or amendment to such registration
statement to correct such untrue statement or omission, and deliver ten (10)
copies of such supplement or amendment to each Holder (or such other number
of
copies as such Holder may reasonably request). The Company shall also promptly
notify each Holder in writing (a) when a prospectus or any prospectus supplement
or post-effective amendment has been filed, and when a registration statement
or
any post-effective amendment has become effective (notification of such
effectiveness shall be delivered by facsimile on the same day of such
effectiveness and by overnight mail), (b) of any request by the Commission
for
amendments or supplements to a registration statement or related prospectus
or
related information, and (c) of the Company’s determination that a
post-effective amendment to a registration statement would be appropriate;
(v) prevent
the issuance of any stop order or other suspension of effectiveness of a
registration statement, or the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction. If such an order or
suspension is issued, the Company shall procure the withdrawal of such order
or
suspension at the earliest possible moment and shall notify each Holder who
holds Registrable Securities being sold of the issuance of such order and the
resolution thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose;
(vi) cause
all
Registrable Securities covered by a registration statement to be listed
continuously throughout the Registration Period on each securities exchange
or
market, if any, on which equity Securities issued by the Company are then
listed;
(vii) reasonably
cooperate with the Holders who hold Registrable Securities being offered to
facilitate the timely preparation and delivery of certificates (not bearing
any
restrictive legend) representing the Registrable Securities to be offered
pursuant to a registration statement and enable such certificates to be in
such
denominations or amounts, as the case may be, as the Holders may reasonably
request and registered in such names as the Holders may request;
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(viii) appoint
a
transfer agent and registrar with respect to all such Registrable Securities
not
later than the effective date of such registration statement;
(ix) provide
each Holder with contact information for the Company’s transfer agent and
registrar for all Registrable Securities registered pursuant to a registration
statement hereunder and a CUSIP number for all such Registrable Securities,
in
each case not later than the effective date of such registration
statement;
(x) cause
the
Registrable Securities covered by the applicable registration statement to
be
registered with or approved by such other governmental agencies or authorities
as may be necessary to consummate the disposition of such Registrable
Securities;
(xi) make
generally available to its security holders as soon as possible, but not later
than 90 days after the close of the period covered thereby, an earning statement
(in form complying with the provisions of Rule 158 under the Securities Act)
covering a twelve-month period beginning not later than the first day of the
Company’s fiscal quarter next following the effective date of the registration
statement;
(xii) otherwise
comply in all material respects with all applicable rules and regulations of
the
Commission in connection with any Registration hereunder;
(xiii) within
two (2) business days after the registration statement which includes the
Registrable Securities is ordered effective by the SEC, the Company shall
deliver to the transfer agent for such Registrable Securities (with copies
to
the Holders whose Registrable Securities are included in such registration
statement) confirmation that the registration statement has been declared
effective by the Commission;
(xiv) in
connection with any underwritten Registration, furnish, on the date that such
Registrable Securities are delivered to the underwriters for sale, (1) 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
the underwriters, addressed to the underwriters and (2) 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 the underwriters, addressed to the underwriters;
and
(xv)
take
all
other reasonable actions necessary to expedite and facilitate disposition by
the
Holders of Registrable Securities pursuant to a registration statement.
-11-
(f)
Indemnification.
(i) To
the
fullest extent permitted by law, the Company will indemnify each of the Holders,
each of its officers, directors, partners and members, and each Person, if
any,
who controls each of the Holders within the meaning of the Securities Act or
Exchange Act, with respect to each Registration which has been effected pursuant
to this Section 2, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement
(or
alleged untrue statement) of a material fact contained in any registration
statement filed with the Commission in connection with such Registration,
including any preliminary prospectus or final prospectus contained therein,
any
amendments or supplements thereto or any issuer free writing prospectus related
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, or any violation by the Company of the Securities Act
or
the Exchange Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such Registration, and will reimburse each of the Holders, each of its
officers, directors, partners or members, and each Person, if any, who controls
each of the Holders within the meaning of the Securities Act or the Exchange
Act, for any legal and any other expenses reasonably incurred in connection
with
investigating and defending any such claim, loss, damage, liability or action,
provided
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 based upon written information furnished to the Company
by
the Holders or underwriter or controlling Person or other aforementioned Person
and stated to be specifically for use therein.
(ii) To
the
fullest extent permitted by law, each of the Holders will, if Registrable
Securities held by it are included in the Securities as to which any
Registration pursuant to Section 2 is being effected, indemnify the Company,
each of its directors and officers, each Person who controls the Company within
the meaning of the Securities Act or the Exchange Act, each Other Stockholder
and each of their officers, directors, partners or members, and each Person
who
controls such Other Stockholder within the meaning of the Securities Act or
the
Exchange Act against all claims, losses, damages and liabilities (or actions
in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any registration statement
filed in connection with such Registration, including any preliminary prospectus
or final prospectus contained therein, any amendments or supplements thereto
or
any issuer free writing prospectus related thereto, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements by such Holder therein not misleading, or
any
violation by the Company of the Securities Act or the Exchange Act or any rule
or regulation thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such Registration,
and
will reimburse the Company and such Other Stockholders, and their respective
directors, officers, partners, members, Persons or control persons for any
legal
or any other expenses reasonably incurred in connection with investigating
or
defending any such claim, loss, damage, liability or
-12-
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 actually
made
in such registration statement, including any preliminary or final prospectus
contained therein, any amendments or supplements thereto or any issuer free
writing prospectus related thereto, or such violation by the Company of the
Securities Act or Exchange Act or any rule or regulation thereunder applicable
to the Company occurs, in reliance upon and in conformity with written
information furnished to the Company by such Holder and stated to be
specifically for use in connection with such Registration (including, without
limitation, any information relating to such Holder’s partners or members);
provided,
however,
that
the obligations of each of the Holders hereunder shall be limited to an amount
equal to the net proceeds to such Holder of securities sold in such Registration
as contemplated herein.
(iii) Each
party entitled to indemnification under this Section 2(f) (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 any litigation resulting therefrom, shall be approved by the Indemnified
Party (whose approval shall not unreasonably be withheld) and the Indemnified
Party may participate in such defense at such party’s expense (unless the
Indemnified Party shall have reasonably concluded that there may be a conflict
of interest between the Indemnifying Party and the Indemnified Party in such
action, in which case the reasonable fees and expenses of counsel shall be
at
the expense of the Indemnifying Party), and provided
further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Section
2
unless the Indemnifying Party is materially prejudiced thereby. No Indemnifying
Party, in the defense of any such claim or litigation shall, except with the
prior written 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 to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and
as
shall be reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(iv) If
the
indemnification provided for in this Section 2(f) is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party with respect
to
any loss, liability, claim, damage or expense referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as
a
result of such loss, liability, claim, damage or expense in such proportion
as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other in connection with the
statements or omissions which resulted in such loss, liability, claim, damage
or
expense, as well as any other relevant equitable considerations. The
relative
-13-
fault
of
the Indemnifying Party and of the Indemnified Party 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 Indemnifying Party or
by
the Indemnified Party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(v) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with any underwritten public offering contemplated by this Agreement are in
conflict with the foregoing provisions, the provisions in such underwriting
agreement shall be controlling.
(vi) The
indemnity agreements contained herein shall be in addition to (i) any cause
of
action or similar right of any Indemnified Party against the Indemnifying Party
or others and (ii) any liabilities the Indemnifying Party may be subject to
pursuant to law.
(g) Obligations
of the Holders.
(i)
It
shall
be a condition precedent to the obligation of the Company to effect any
Registration pursuant to this Agreement with respect to the Registrable
Securities of a particular Holder that such Holder furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any such Registration.
(ii) In
the
event that, either immediately prior to or subsequent to the effectiveness
of
any registration statement, any Holder shall distribute Registrable Securities
to its partners or members, such Holder shall so advise the Company and provide
such information as shall be necessary to permit an amendment to such
registration statement to provide information with respect to such partners
or
members, as selling security holders. Promptly following receipt of such
information, the Company shall file an appropriate amendment to such
registration statement reflecting the information so provided. Any incremental
expense to the Company resulting from such amendment shall be borne by such
Holder.
(iii) Each
Holder by such Holder’s acceptance of the Registrable Securities agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of any Registration hereunder, unless such
Holder has notified the Company in writing of such Holder’s election to exclude
all of such Holder’s Registrable Securities from such Registration.
(iv) Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Section 2(e)(iv) or the commencement
of any
-14-
Suspension
Period pursuant to Section 2(e)(i), such Holder will immediately discontinue
disposition of Registrable Securities pursuant to any registration statement(s)
covering such Registrable Securities until such Holder’s receipt of the copies
of the supplemented or amended prospectus contemplated by Section 2(e)(iv)
or the termination of the Suspension Period, and, if so directed by the Company,
such Holder shall deliver to the Company (at the expense of the Company), or
destroy all copies in such Holder’s possession of, any prospectus covering such
Registrable Securities current at the time of receipt of such notice.
(h) Rule
144 Reporting.
With
a
view to making available to Holders the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted Securities
to the public without registration, the Company agrees, subject to Section
2(j),
to use reasonable best efforts to:
(i)
make
and
keep public information available as those terms are understood and defined
in
Rule 144 under the Securities Act (“Rule 144”), at all times from and after the
first anniversary of the date of this Agreement;
(ii)
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 at any time after
it
has become subject to such reporting requirements; and
(iii) so
long
as a Holder owns any Registrable Securities, furnish to such Holder upon
request, a written statement by the Company as to its compliance with the
reporting requirements of Rule 144, and of the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements),
a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed as such Holder may reasonably request
in
availing itself of any rule or regulation of the Commission allowing the Holder
to sell any such Securities without registration.
(i)
Additional
Registration Rights.
The
Company shall not, without first obtaining the written consent of the Holders
who are Holders of more than 50% of the then outstanding Registrable Securities,
grant registration rights on terms more favorable than the registration rights
granted pursuant to this Agreement.
(j)
Termination.
The
registration rights set forth in this Section 2 shall not be available to any
Holder, and the obligations of the Company set forth in Section 2(h) shall
not
pertain to any Holder, if, (i) in the written opinion of counsel to the Company,
all of the Registrable Securities then owned by such Holder could be sold in
any
90-day period pursuant to Rule 144 (without giving effect to the provisions
of
Rule 144(k)) or (ii) all of the Registrable Securities held by such Holder
have
been sold in a Registration pursuant to the Securities Act or pursuant to Rule
144.
SECTION
3. MISCELLANEOUS
-15-
(a)
Directly
or Indirectly.
Where
any provision in this Agreement refers to action to be taken by any Person,
or
which such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person.
(b)
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed entirely
within such State.
(c)
Section
Headings.
The
headings of the sections and subsections of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part
thereof.
(d)
Notices.
(i) All
communications under this Agreement shall be in writing and shall be delivered
by hand or facsimile or mailed by overnight courier or by registered or
certified mail, postage prepaid:
(1)
if
to the
Company, to NYFIX, Inc., 000 Xxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX 00000, Attention: General Counsel, or at such other address as
it
may have furnished to the Holders in writing.
(2)
if
to the
Investors, at the address or facsimile number listed on Schedule
I
hereto,
or at such other address or facsimile number as may have been furnished the
Company in writing.
(ii)
Any
notice so addressed shall be deemed to be given: if delivered by hand or
facsimile, on the date of such delivery, if a business day and delivered during
regular business hours, otherwise the first business day thereafter; if mailed
by overnight courier, on the first business day following the date of such
mailing; and if mailed by registered or certified mail, on the third business
day after the date of such mailing.
(e)
Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
any
consents, waivers and modifications which may hereafter be executed may be
reproduced by the Holders by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and the Holders
may
destroy any original document so reproduced. The parties hereto agree and
stipulate that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not
the
original is in existence and whether or not such reproduction was made by the
Holders in the regular course of business) and that any enlargement, facsimile
or further reproduction of such reproduction shall likewise be admissible in
evidence.
(f) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties. The registration rights set forth
in
this Agreement may be assigned, in whole or in part, to any transferee
of
-16-
Registrable
Securities (provided such transferee shall agree to be bound by all obligations
of this Agreement).
(g)
Entire
Agreement; Amendment and Waiver.
This
Agreement and the Purchase Agreement constitute the entire understanding of
the
parties hereto relating to the subject matter hereof and supersede all prior
understanding and agreements among such parties with respect to the subject
matter hereof. This Agreement may be amended, and the observance of any term
of
this Agreement may be waived, with (and only with) the written consent of the
Company and the Investors holding a majority of the then outstanding Registrable
Securities held by Investors.
(h)
Severability.
In the
event that any part or parts of this Agreement shall be held illegal or
unenforceable by any court or administrative body of competent jurisdiction,
such determination shall not affect the remaining provisions of this Agreement
which shall remain in full force and effect.
(i)
Counterparts.
This
Agreement may be executed in two or more counterparts (including by facsimile),
each of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
-17-
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first set forth above.
|
NYFIX,
INC.
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |
|
Name:
Xxxxxx X. Xxxxxxxxx
|
||
|
Title:
Chief Financial Officer
|
||
|
WARBURG
PINCUS PRIVATE EQUITY IX, L.P.
|
||
|
By:
Warburg Pincus IX LLC, its General Partner
|
||
|
By:
Warburg Pincus Partners LLC, its Managing Member
|
||
|
By:
Warburg Pincus & Co., its Managing Member
|
||
|
By:
|
/s/ Xxxx X. Xxxxx | |
|
Name:
Xxxx X. Xxxxx
|
||
|
Title:
Managing Director
|
||
Schedule
I
Investors
Inestor
Name and Address
Warburg
Pincus Private Equity IX, L.P.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxx X. Xxxxx and Xxxxxx Xxxxx
Copy
to:
Xxxxxxx
Xxxx & Xxxxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxx X. Xxxxxxx, Esq. and Xxxxxxx X. Xxxx
