NYFIX, INC. MODEL RESTRICTED STOCK UNIT AGREEMENT [Senior Executives Only]
NYFIX,
INC.
2007
OMNIBUS EQUITY COMPENSATION PLAN
MODEL
[Senior
Executives Only]
Restricted
Stock Unit Agreement (this “Agreement”),
dated
as of _______ __, 2007, between NYFIX, Inc. (“NYFIX”)
and
_______ (the “Participant”).
BACKGROUND
Pursuant
to the terms of the NYFIX, Inc. 2007 Omnibus Equity Compensation Plan (the
“Plan”)
and
subject to the approval of the Plan by the stockholders of NYFIX, NYFIX desires
to (i) provide an incentive to the Participant, (ii) encourage the Participant
to contribute materially to the growth of NYFIX and its subsidiaries
(collectively, the “Company”)
and
(iii) more closely align the Participant’s economic interests with those of
NYFIX stockholders by means of a Stock Unit Grant. Whenever capitalized terms
are used in this Agreement, they shall have the meanings set forth in this
Agreement or, if not defined in this Agreement, as set forth in the
Plan.
In
consideration of the covenants and agreements set forth in this Agreement,
and
intending to be legally bound hereby upon the approval of the Plan by the
stockholders of NYFIX, the Participant and NYFIX hereby agree as
follows:
ARTICLE
I
GRANT
OF RESTRICTED STOCK UNITS
1.1 Grant
of RSUs.
The
Participant is hereby granted _______________ restricted stock units (the
“Restricted Stock Units” or “RSUs”) subject to the restrictions and conditions
set forth in this Agreement and subject to the approval of the Plan by the
stockholders of NYFIX. Each RSU represents the right to receive one share of
Stock or the Fair Market Value of one share of Stock as of the Settlement Date
(as defined in Section 3.1).
1.2 Grant
Information.
The
RSUs have been granted under the Plan. The Board or the Committee authorized
the
grant of the RSUs on ____________.
ARTICLE
II
EARNING
AND VESTING OF RESTRICTED STOCK UNITS
All
of
the RSUs are unvested. RSUs shall be earned and vest upon, but only upon, the
earliest to occur of the events described in Section 2.1 or 2.2, in each case
subject to the limitations set forth in Section 2.3. All unvested RSUs shall
be
forfeitable as set forth in Section 2.3. All vested RSUs shall become
non-forfeitable at the time they first vest. RSUs are not transferable at any
time.
2.1 (a) Performance
Targets for Earning RSUs.
If not
sooner vested in
accordance with Section 2.2 and
unless previously forfeited pursuant to Section 2.3:1
A. First
Year Earning.
Up to
twenty-five percent (25%) of the RSUs (the “First
Tranche Units”)
may be
earned on March 10, 2008 (the “First
Earning Date”).
The
measures
which
will pertain to performance during calendar year 2007,
and a
schedule of the number of RSUs that may be earned based on attainment of
such
measures (which are determined by the Committee) will be delivered to the
Participant at the time, or shortly after, this Agreement is executed. Any
First
Tranche Units that are unearned as of March 10, 2008 shall continue to be
unearned.
B. Second
Year Earning.
Up to
twenty-five percent (25%) of the RSUs (the “Second
Tranche Units”)
may be
earned on March 10, 2009 (the “Second
Earning Date”)
based
on attainment of measures for the calendar year 2008 determined by the
Committee. The measures and a schedule of the number of RSUs that may be earned
based on attainment of such measures will be delivered to the Participant in
writing by March 31, 2008. Any Second Tranche Units that are unearned as of
March 10, 2009 shall continue to be unearned.
C. Third
Year Earning.
Up to
twenty-five percent (25%) of the RSUs (the “Third
Tranche Units”)
may be
earned on March 10, 2010 (the “Third
Earning Date”)
based
on attainment of measures for the calendar year 2009 determined by the
Committee. The measures and a schedule of the number of RSUs that may be earned
based on attainment of such measures will be delivered to the Participant in
writing by March 31, 2009. Any Third Tranche Units that are unearned as of
March
10, 2010 shall continue to be unearned.
D. Fourth
Year Earning.
Up to
twenty-five percent (25%) of the RSUs (the “Fourth
Tranche Units”)
may be
earned on March 10, 2011 (the “Fourth
Earning Date”)
based
on attainment of measures for the calendar year 2010 determined by the
Committee. The measures and a schedule of the number of RSUs that may be
earned
based on attainment of such measures will be delivered to the Participant
in
writing by March 31, 2010. Any Fourth Tranche Units that are unearned as
of
March 10, 2011 shall be
forfeited.
E. Carryforward. The
excess of all of the RSUs that are not forfeited over the RSUs that are earned
as of March 10, 2011 following the application of Sections 2.1(i)(A) through
(D)
(the “Carryforward Units”), may be earned on March 10, 2011 based on
attainment of measures for the calendar year 2010 determined by the Committee.
The measures will be delivered to the Participant in writing by March 31,
2010.
Any RSUs that are unearned as of March 10, 2011 after giving effect to this
Section 2.1(i)(E) shall, subject to section 2.2, remain unearned and shall
be
forfeited in accordance with Section 2.3.
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This
model reflects the performance-based schedule for persons who were
employees prior to March 10, 2007. For employees hired on or after
March
10, 2007, the First Tranche Units shall be subject to vesting on
the First
Vesting Date as to only a pro-rata portion based on the number
of full and
partial months the employee was employed between March 10, 2008
and March
9, 2009. Any First Tranche Units remaining unvested following the
First
Vesting Date (regardless of any pro rata vesting in the first year)
shall
be eligible for vesting in accordance with the same schedule as
pre-March
10, 2007 employees. The schedule and targets are subject to change
following the 2007 grant program.
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F. Partial
Vesting.
If a
partial RSU
would be
earned on any date, the total number of RSUs earned on such date shall be
rounded up to the nearest whole RSU.
G. Performance
Measures. The Committee may make adjustments to performance targets after
March 31 of the applicable earning period to the extent such adjustments
are set
forth at the time the performance targets are established and are permitted
by
the Plan.
H. Certification.
The
Committee shall certify on or before the applicable Earning Date whether
the
performance target applicable to such Earning Date was satisfied.
(ii) Vesting
of RSUs. If not sooner vested in
accordance with Section 2.2 and
unless previously forfeited pursuant to Section 2.3,
A. the
earned First Tranche Units shall vest and become non-forfeitable on March
10,
2009 (the “First Vesting Date”) only if the Participant is still employed by the
Company on such date,
B. the
earned Second Tranche Units shall vest and become non-forfeitable on March
10,
2010 (the “Second Vesting Date”) only if the Participant is still employed by
the Company on such xxxx,
X. the
earned Third Tranche Units
shall
vest and become non-forfeitable on March 10, 2011 (the
“Final Vesting Date”) only
if
the Participant is still employed by the Company
on such
date,
D. the
earned Fourth Tranche Units shall vest and become non-forfeitable on the
Final
Vesting Date only if the Participant is still employed by the Company on
such
date, and
E. the
earned Carryforward Units shall vest and become non-forfeitable on the Final
Vesting Date only if the Participant is still employed by the Company on
such
date.
2.2 Accelerated
or Continued Earning and/or Vesting.
The
Committee may accelerate the date on which any or all of the RSUs are earned
and/or vested at any time and for any reason. Notwithstanding anything contained
herein to the contrary,
unless
previously forfeited in accordance with Section 2.3:
(i) upon
a
termination of the Participant’s employment (a) by the Company without Cause (as
defined in Section 4.1) or (b) by the Participant for Good Reason (as defined
in
Section 4.1) prior
to
January 1, 2010, the following rules shall apply:
A. the
Participant may continue to earn the RSUs that would have been earned (in
accordance with Section 2.1 hereof) had the Participant remained employed
through the last day of the period for which the Participant receives severance,
if any, following such termination (the “Severance
Period”),
based
on the attainment of performance targets for the applicable earning
period(s)
(i.e., each calendar year that includes all or part of the Severance Period);
provided however, that the number of RSUs that may be earned for the calendar
year that includes the last day of the Severance Period shall equal (a) the
number of RSUs that would have been earned based on the attainment of
performance targets described in Section 2.1(i) for the calendar year that
includes the last day of the Severance Period multiplied by (b) a
fraction, the numerator of which is the
number of days in the calendar year that elapsed prior to such last
day
and the
denominator of which is 365; provided, further, however, that the Participant
shall not be entitled to earn any RSUs pursuant to Section
2.1(i)(E),
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B. the
Participant’s RSUs earned on or prior to the date of such termination shall vest
and become non-forfeitable immediately upon such termination, and
C. the
Participant’s RSUs earned following the date of such termination in accordance
with Section 2.2(i)(A) shall vest and become non-forfeitable immediately
upon
being earned;
(ii) upon
a
termination of the Participant’s employment (a) by the Company without Cause (as
defined in Section 4.1) or (b) by the Participant for Good Reason (as defined
in
Section 4.1) on or after January 1, 2010, the following rules shall
apply:
A. the
Participant may continue to earn the RSUs that would have been earned (in
accordance with Section 2.1 hereof) had the Participant remained employed
through the last day of the Severance Period, based on the attainment of
performance targets with respect to the Third Tranche Units, the Fourth Tranche
Units and the Carryforward Units; provided however, that the number of Fourth
Tranch Units and Carryforward Units that may be earned, if the Severance
Period
ends prior to January 1, 2011, shall equal (a) the number of RSUs that would
have been earned based on the attainment of performance targets described
in
Section 2.1(i)(D) and (E), as applicable, multiplied by (b) a fraction, the
numerator of which is the number of days in the calendar year that elapsed
prior
to such last day and the denominator of which is 365,
B. the
Participant’s RSUs
earned on or prior to
the date
of such termination shall
vest and
become non-forfeitable immediately
upon such termination, and
C. the
Participant’s RSUs earned following the date of such termination in accordance
with Section 2.2(ii)(A) shall vest and become non-forfeitable immediately
upon
being earned;
(iii) upon
a
termination of the Participant’s employment due to death or Disability (as
defined in Section 4.1), the
following rules shall apply:
A. the
Participant may earn, on the Earning Date next following such date of
such
termination,
the number of RSUs equal to (a) the number of RSUs that would have been earned
based on the attainment of performance targets for the calendar year that
includes the date of such termination, multiplied by (b) a
fraction, the numerator of which is the
number of days in the calendar year that elapsed prior to such termination
and the denominator of which is 365,
B. the
Participant’s RSUs
earned on or prior to the date of such termination shall
vest and
become non-forfeitable immediately
upon such termination, and
C. the
Participant’s RSUs earned following the date of such termination in accordance
with Section 2.2(iii)(A) shall vest and become non-forfeitable immediately
upon
being earned;
(iv) upon
a
Change in Control, any RSUs earned on or prior to,
but
unvested as of,
the date
of the Change in Control shall
immediately
vest and
become non-forfeitable.2
2.3 Effect
of Termination of Employment on Earning and Vesting; Forfeiture of Unvested
RSUs.
Unless
otherwise determined by the Committee and after giving effect to any applicable
continuation or acceleration, as applicable, of earning and vesting provided
in
Section 2.2 hereof, all RSUs that are both unearned and unvested shall cease
to
be eligible to be vested and shall be forfeited as of the earlier of (i) the
time of notification of the termination of the Participant’s employment with the
Company for Cause, (ii) the termination of the Participant’s employment with the
Company (which means the last date of actual employment, even if a different
date is used for administrative convenience in connection with employee
retirement, benefit or welfare plans) other than by the Company without Cause
or
by the Participant for Good Reason, (iii) a Change in Control or (iv) the Fourth
Earning Date.
2.4 Change
in Control.
Except
as otherwise provided in this Agreement or as the Committee may determine at
the
time of a Change in Control, the effect of a Change in Control on the
Participant’s RSUs is subject to Section 17 of the Plan.
ARTICLE
III
PROCEDURES
AFFECTING PAYMENT OF RESTRICTED STOCK UNITS
3.1 Payment
of RSUs and Delivery of Stock.
(i) Vested
RSUs will be settled on the earliest of
the
following (such earliest date, the “Settlement Date”):
A. the
First
Vesting Date (in case of First Tranche Units); the Second Vesting Date
(in case
of Second Tranche Units) or the Final Vesting Date (in case
of Third Tranche Units, Fourth Tranche Units and Carryforward Units), as
applicable to such RSUs;
B. the
date
of
a Change
in Control (provided that such event constitutes a “change in control” within
the meaning of Code Section 409A),
and
C. the
Earning Date next following the date of the Participant’s death.
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For
Xx. Xxxxxxxxx, include the following definition of “Change in Control”:
(i) the sale or disposition, in one or a series of related transactions,
of all or substantially all of the assets of NYFIX to any “person” or
“group” (as such terms are defined in Sections 13(d)(3) and 14(d)(2) of
the Exchange Act) other than Warburg Pincus Private Equity IX,
L.P. or its
Affiliates; (ii) any person or group, other than the Warburg Pincus
Private Equity IX, L.P. or its Affiliates, is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% of the total voting power
of the
voting stock of NYFIX (or, if NYFIX is not the survivor, the survivor),
including by way of merger, consolidation or otherwise (other than
an
offering of Stock to the general public through a registration
statement
filed with the Securities and Exchange Commission); or (iii) any
person or
group, other than the Warburg Pincus Private Equity IX, L.P. or
its
Affiliates, is or becomes the beneficial owner, directly or indirectly,
of
35% or more of the combined voting power of NYFIX’s then outstanding
securities during any twelve-month period.
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(ii) RSUs
will
be paid to
the
Participant within
30
days following the applicable
Settlement
Date (each
such
payment date ,
the
“Delivery
Date”).
Vested RSUs will be paid either wholly in Stock or wholly in cash (in an
amount
equal to the Fair Market Value of such Stock on the Settlement Date). The
determination of whether the Vested RSUs will be settled in Stock or cash
will
be made by the Committee prior to the date the RSUs vest and, if the RSUs
are to
be paid in shares of Stock and the Withholding Amount (as defined in Section
3.2) is to be paid by selling shares of Stock, at a time when there is no
material non-public information. The payment of the RSUs may not be accelerated
or deferred by either the Company or the Participant except as explicitly
permitted or required by Code Section 409A.
(iii) Unless
otherwise determined by the Company, each physical certificate and each book
entry, in each case relating to Stock deliverable as payment of the RSUs
may
include such restrictive legends in such forms as the Company may deem
convenient, expedient, necessary or appropriate relating to applicable
securities, tax or other laws or applicable rules of any securities exchange
or
market. Transferability of such Stock may be subject to pre-clearance, blackout,
registration and other requirements and restrictions under the Company’s xxxxxxx
xxxxxxx and other compliance policies and procedures. Transfers of Stock
by
executive officers should be reviewed in advance to determine if there would
be
any potential liability for short-swing profits under Section 16(b) of the
Securities Exchange Act of 1934.
3.2 Withholding
of Taxes.
(i) The
Participant acknowledges and agrees that the Company has the right to deduct
from payments of any kind otherwise due to the Participant any federal, state,
local or other taxes of any kind required by law to be withheld with respect
to
the RSUs. On or about the Settlement Date, the Company shall deliver written
notice to the Participant of the amount of withholding taxes due with respect
to
the payment of the RSUs; provided, however, that the total tax withholding
will
be approximately the minimum required statutory withholding (based on minimum
statutory withholding rates for federal and state tax purposes, including
payroll taxes, that are applicable to such supplemental taxable income), as
determined by the Company.
(ii) If
the
RSUs are settled in cash, the withholding amount will be deducted from the
cash
paid to the Participant on the Delivery Date.
(iii) If
the
RSUs are settled in Stock, the Participant shall be required, and hereby
consents to, sell, or arrange for the sale of, on the Delivery Date, at the
then
prevailing market price, such number of shares of Stock underlying the RSUs
as
is sufficient to generate net proceeds sufficient to satisfy the Company’s
minimum statutory withholding obligations with respect to the income recognized
by the Participant upon the settlement of the RSUs and to promptly transfer
such
withholding amount to the Company in satisfaction of such tax withholding
obligations. The Participant agrees to execute and deliver, upon the request
of
the Company, such documents, instruments and certificates as may reasonably
be
required in connection with the sale of the shares of Stock pursuant to this
Section 3.2(iii) and hereby appoints the Company as the Participant’s
attorney-in-fact with authority to take all of such actions and execute all
such
documents on behalf of the Participant as the Company reasonably deems necessary
to effect such sales on the Participant’s behalf. The Participant and the
Company have structured this Agreement to constitute a “binding contract”
relating to the sale of Common Stock pursuant to this Section 3, consistent
with
the affirmative defense to liability under Section 10(b) of the Securities
Exchange Act of 1934 under Rule 10b5-1(c) promulgated under such
Act.
ARTICLE
IV
MISCELLANEOUS
4.1 Definitions.
(i) “Cause”
shall
mean that the Company has “cause” to terminate the Participant’s employment or
service, as defined in any existing employment or other agreement between the
Participant and the Company or, in the absence of such an employment or other
agreement, upon:
5
X. xxxxx
neglect or willful misconduct which is or is reasonably expected to be
materially and demonstrably injurious to the Company or its customers or
vendors; material breach by the Participant of his or her confidentiality,
non-competition or non-solicitation obligations owed to the Company; or willful
and continuing refusal or continuing failure (in either case other than due
to
death or Disability) by the Participant to substantially perform his or her
duties or responsibilities for or owed to the Company; or
B. conviction
of or plea of guilty or no contest by the Participant to a felony or a crime
of
moral turpitude.2
(ii) “Disability”
shall
mean disability as determined by the Committee in accordance with the standards
and procedures similar to those under the Company’s long-term disability plan,
if any. If at any time that the Company does not maintain a long-term disability
plan, “Disability” shall mean any physical or mental disability which is
determined to be total and permanent by a doctor selected in good faith by
the
Committee.
(iii) “Good
Reason” shall
mean that the Participant has “good reason” to terminate his or her employment,
as defined in any existing employment or other agreement between the Participant
and the Company or, in the absence of such an employment or other agreement,
upon the occurrence of any of the following events without the Participant’s
prior written consent: (A) a material reduction in the Participant’s base salary
or annual bonus incentive; (B) the assignment of duties materially inconsistent
with the Participant’s position or a material reduction in the Participant's
responsibilities or authority (in each case in this Clause B), so long as notice
that Good Reason has occurred is given by the Participant to the Company within
6 months (or such longer period as the Company may allow) after such occurrence
and further provided the Company has not cured the circumstances giving rise
to
the Good Reason within 10 days of receipt of such notice); or (C) the
requirement that the Participant relocate his or her principal place of
employment to a location more than 50 miles from the Participant’s current
location.3
4.2 Notices.
All
notices, requests and demands to or upon the parties hereto to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or three days after being deposited in the mail, postage prepaid,
or,
in the case of telecopy or email notice, when received, addressed as follows
to
the Company and the Participant, or to such other address as may be hereafter
notified by the parties hereto:
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To
the extent the Participant has a “cause” definition in an agreement,
the agreement
should be accurately referenced and this general definition
deleted.
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To
the extent the Participant has a “good reason” definition in an agreement,
the agreement
should be accurately referenced and this general definition
deleted.
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(i)
|
If
to the Company, to it at the following
address:
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NYFIX,
Inc.
000
Xxxx
Xxxxxx - 00xx Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
General Counsel
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(ii)
|
If
to the Participant, to his or her most recent primary residential
address
or business telecopy or email address as shown on the records of
the
Company.
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4.3 No
Right To Continued Employment.
The
Participant acknowledges and agrees that, notwithstanding the fact that the
vesting of the RSUs is contingent upon his or her continued employment by the
Company, this Agreement does not constitute an express or implied promise of
continued employment or confer upon the Participant any rights with respect
to
continued employment by the Company.
4.4 Amendments
and Conflicting Agreements.
This
Agreement may be amended by a written instrument executed by the parties which
specifically states that it is amending this Agreement or by a written
instrument executed by the Company which so states if such amendment is not
adverse to the Participant or relates to administrative matters.
4.5 Governing
Law and Interpretation.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Delaware applicable to contracts made and to be performed
therein without regard to the conflicts of law principles thereof. Whenever
the
word “including” is used herein, it shall be deemed to be followed by the phrase
“without limitation.” Unless otherwise specified herein, all determinations,
consents, elections and other decisions by the Company, the Committee or the
Broker may be made, withheld or delayed in its sole and absolute
discretion.
4.6 Code
Section 409A.
The
parties recognize that certain provisions of this Agreement may be affected
by
Code Section 409A and agree to negotiate in good faith to amend this Agreement
with respect to any changes necessary or advisable to comply with such Code
Section 409A.
4.7 Titles.
Titles
are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
4.8 Counterparts.
This
Agreement may be executed in counterparts, which together shall constitute
one
and the same instrument and which will be deemed effective whether received
in
original form or by telecopy or other electronic means. Facsimile signatures
shall be as effective as original signatures.
4.9 Construction.
The
construction of this Agreement is vested in the Committee, and the Committee’s
construction shall be final and conclusive on all Persons.
4.10 Effective
Date of Agreement.
This
Agreement is effective as of the date the stockholders of NYFIX approve the
Plan.
*
*
*
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IN
WITNESS WHEREOF,
the
Company has caused this Agreement to be executed by a duly authorized
officer.
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NYFIX,
INC.
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By:____________________________________
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Name:__________________________________
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PARTICIPANT’S
ACCEPTANCE
The
Participant acknowledges that he or she has read this Agreement, has received
and read the Plan, and understands the terms and conditions of this Agreement
and the Plan and hereby accepts the foregoing RSUs and agrees to be bound by
the
terms and conditions of this Agreement and the Plan.
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PARTICIPANT
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| ______________________________ | |
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Signed
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