NYFIX, INC. 2007 OMNIBUS EQUITY COMPENSATION PLAN MODEL NON-QUALIFIED STOCK OPTION AGREEMENT (TIME VESTING)
Exhibit 10.3
NYFIX, INC.
2007 OMNIBUS EQUITY COMPENSATION PLAN
MODEL
NON-QUALIFIED STOCK OPTION AGREEMENT
(TIME VESTING)
Non-Qualified Stock Option Agreement (this “Agreement”), dated as of October
2, 2007, between NYFIX, Inc. (“NYFIX”) and P. Xxxxxx Xxxxxxxxx (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 Nonqualified Stock Option 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.
The Plan allows the Company to provide rewards and incentives to certain
employees of the Company by, among other things, granting them opportunities to purchase
shares of Stock. The Board or the Committee has determined that it would be in the best interest
of the Company and its stockholders to grant the Options to the Participant under 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 1
GRANT OF OPTIONS
1.1 Grant of Options. The Participant is hereby granted Nonqualified Stock
Options representing the right to purchase 753,786 shares of Stock subject to the restrictions and
conditions set forth in this Agreement and subject to the approval of the Plan by the stockholders
of NYFIX. References in this Agreement to “Option” and “Options” mean the options granted
hereby, individually and in the aggregate.
1.2 Option Price. The Option Price of the Options is $4.60 per share, which is
the same as the Fair Market Value of a share of Stock on the Date of Grant.
1.3 Grant Information. The Options have been granted under the Plan. The
Board or the Committee authorized the grant of the Options on October 2, 2007.
ARTICLE 2
EXERCISABILITY OF OPTIONS
All of the Options are unvested on the Date of Grant. Options shall vest upon, but
only upon, the earliest to occur of the events described in Section 2.1, 2.2 or 2.3 and shall
become exercisable as described in Section 2.4, in each case subject to the limitations set forth in
Section 2.5. All unvested Options shall be forfeitable as set forth in Section 2.5 and shall be
non-transferable as set forth in Section 5.2. All shares of Stock issued upon exercise of Options
shall be transferable, although:
(a) transferability 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; and
(b) transfers 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.
2.1 Time Vesting. If not sooner vested and unless previously forfeited
pursuant to Section 2.5, all of the Options shall vest based on the passage of time as follows:
2.7778% of the Options shall vest on October 4, 2007 and on the fourth day of each month
thereafter through and including September 4, 2010.
If a partial Option would vest on any date, the total number of Options vesting on
such date shall be rounded up to the nearest whole Option.
2.2 Accelerated and Continued Vesting. If not sooner vested and exercisable,
and unless previously cancelled pursuant to Section 2.5 or 4.2,
(i) all of the Options shall vest and become immediately exercisable
upon a termination of the Participant’s employment (a) by the Company without Cause (as
defined in Section 5.1) or (b) by the Participant for Good Reason (as defined in Section 5.1), in
either case within one year following a Change in Control;
(ii) following a termination of the Participant’s employment (a) by the
Company without Cause or (b) by the Participant for Good Reason, in either case prior to or
more than one year following a Change in Control, the Participant’s Options that would have
vested through the month that includes the last day of the period for which the Participant
receives severance, if any, following such termination (the “Severance Period”), shall
immediately vest; and
(iii) in the event of a termination of the Participant’s employment by
reason of death, the Participant’s Options that would have vested during the nine-month period
following such termination may become immediately vested upon such termination in
accordance with the terms of Section 5 of the Employment Agreement between the Company
and the Participant dated September 4, 2006, as amended from time to time (the “Employment
Agreement”).
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2.3 Discretionary Vesting and Exercisability. The Committee or the Board
may accelerate the vesting of any or all of the Options at any time and for any reason.
2.4 Exercise; Restriction on Exercise. No unvested Options shall be
exercisable. All vested Options shall become exercisable at the time they first vest and shall
cease to be exercisable at the time they expire and are forfeited as provided in Section 2.5 or
Article 4.
2.5 Effect of Termination of Employment on Vesting; Expiration of Unvested
Options. All unvested Options expire upon the earliest to occur of:
(i) the time of notification of the termination of the Participant’s
employment by the Company for Cause;
(ii) termination of the Participant’s employment for any reason other
than Cause or, if later, the expiration of the Severance Period, if applicable; and
(iii) expiration as provided in Section 4.1.
2.6 Change in Control. Except as otherwise provided in this Agreement, the
effect of a Change in Control on the Participant’s Options is subject to Section 17 of the Plan.
ARTICLE 3
EXERCISE OF OPTIONS
3.1 Person Who Can Exercise. Exercisable Options may only be exercised by
the Participant, except that, in the event of the Disability of the Participant, those Options may be
exercised by the Participant’s legal guardian or legal representative and, in the event of death,
those Options may be exercised by the executor or administrator of the Participant’s estate or the
Person or Persons to whom the Participant’s rights under those Options pass by will or the laws
of descent and distribution.
3.2 Procedure for Exercise. Exercisable Options may be exercised in whole or
in part with respect to any portion thereof that is exercisable. To exercise an exercisable Option,
the Participant (or such other Person who shall be permitted to exercise that Option as set forth in
Section 3.1) must complete, sign and deliver to the Company an exercise notice in a form to be
provided by the Company together with payment in full of the Option Price multiplied by the
number of shares of Stock with respect to which that Option is exercised, in accordance with the
option exercise procedures of the Company as in effect from time to time. The right to exercise
any Option shall be subject to the satisfaction of all conditions set forth in such form of exercise
notice. Payment of the Option Price shall be made in cash (including check, bank draft or
money order). The Participant’s right to exercise the Option shall be subject to the satisfaction
of all conditions set forth in such exercise notice.
3.3 Withholding of Taxes.
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(i) The Company shall withhold or deduct from any or all payments
or amounts due to or held for the Participant (or such other Person who may be permitted to
exercise Options as set forth in Section 3.1), whether due from the Company or held in the
account of the Participant (or such other Person) at any broker facilitating the exercise of
Options, or secure payment from the Participant of, an amount (the “Withholding Amount”)
equal to all taxes (including unemployment (including FUTA), social security and medical
(including FICA), and other governmental charges of any kind as well as income and other
taxes) required under any applicable law to be withheld or deducted with respect to any and all
taxable income and other amounts attributable to the Options.
(ii) The Withholding Amount shall be determined by the Company.
(iii) Immediately upon request by the Company, the Participant agrees
to pay all, or a portion if so requested by the Company, of the Withholding Amount to the
Company in cash.
(iv) The timing of withholding or deduction from such payments or
amounts shall be determined by the Company.
ARTICLE 4
EXPIRATION OF OPTIONS
4.1 Expiration. Vested and unvested Options shall expire at 5:00 p.m.,
Eastern Daylight Time on October 2, 2017.
4.2 Earlier Expiration. Notwithstanding Section 4.1, unless otherwise
determined by the Committee, Options shall be forfeited and shall expire on the earliest to occur
of the following:
(i) all unvested Options shall expire as provided in Section 2.5;
(ii) upon the Participant’s termination of employment by the Company
for Cause, all vested Options shall expire immediately at the time notice of such termination is
given (unless otherwise determined by the Company in its sole discretion);
(iii) upon the Participant’s termination of employment by the Company
without Cause or the Participant’s resignation from employment with the Company other than in
connection with death or Disability, all vested Options shall expire upon the earlier of (a) the
ninetieth day following the date of such termination or (b) the expiration of the Options under
Section 4.1; and
(iv) upon the Participant’s termination of employment due to the
Participant’s death or Disability, all vested Options shall expire upon the earlier of (a) the 12-
month anniversary of the date of such termination or (b) the expiration of the Options under
Section 4.1.
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4.3 Cancellation. Vested and unvested Options which expire unexercised shall
be treated as cancelled.
4.4 Effective Date. For purposes hereof, except as otherwise set forth in
Sections 2.5 and 4.2, the date of resignation or termination of employment 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.
ARTICLE 5
MISCELLANEOUS
5.1 Definitions. The terms “Cause”, “Change in Control”, “Disability” and
“Good Reason” shall each have the meaning ascribed to such term in the Employment
Agreement.
5.2 Options Not Transferable. Options may not be transferred (other than by
will or laws of descent and distribution). Any attempt to effect a transfer of Options that is not
permitted by the Plan or this Agreement shall be null and void.
5.3 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 Code Section
409A.
5.4 Code Section 162(m). The Options were granted in a manner intended to
meet the requirements of “qualified performance based compensation” under Code Section
162(m), including the requirement that the stockholders of NYFIX approve of the Grant before it
can be effective.
5.5 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:
(i) If to the Company, to it at the following address:
NYFIX, Inc.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
(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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5.6 No Right To Continued Employment. The Participant acknowledges and
agrees that, notwithstanding the fact that the vesting of the Options 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.
5.7 Amendments and Conflicting Agreements.
(a) 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.
(b) To the extent the provisions of this Agreement relating to vesting,
exercisability or termination of the Options are inconsistent with the terms of the Employment
Agreement, the terms of this Agreement shall control and the Employment Agreement is hereby
deemed amended to the extent of such inconsistency to conform to the terms of this Agreement.
5.8 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 Committee may be made, withheld or delayed in its sole and
absolute discretion.
5.9 Titles. Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
5.10 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.
5.11 Construction. The construction of this Agreement is vested in the
Committee, and the Committee’s construction shall be final and conclusive on all Persons.
5.12 Effective Date of Agreement. This Agreement is effective as of the date
the stockholders of NYFIX approve the Plan and shall terminate if such approval is not obtained
within 12 months of the Date of Grant.
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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: /s Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx |
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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| /s/ P. Xxxxxx Xxxxxxxxx Signed |
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