SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit
10.2
This
Separation Agreement and General Release (the “Agreement”), dated as of February
17th, 2006, is entered into by and between NYFIX, Inc., a New York Corporation
with offices at 000 Xxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx XX 00000
(the “Company”) and Xxxxx X. Xxxxxxxx, (the “Executive”). Each of the Company
and the Executive shall be referred to herein as a “Party;” or, taken together,
the “Parties.” In consideration of the mutual promises and agreements contained
herein and for other good, valuable, and received consideration, Executive
and
the Company agree as follows:
1. Executive’s
last day of employment with the Company is December 31, 2005 (the “Effective
Date”). As of December 31, 2005, Executive has relinquished all responsibilities
and positions he holds as of that date as an officer or director of NYFIX,
Inc.
and all of its subsidiaries.
2. (a) Company
officials have informed Executive regarding the benefits Executive has a
right
to receive upon the termination of employment from the Company, as described
in
the attached separation letter, and explained to Executive that in addition
to
those benefits, the Company will give Executive certain severance benefits
outlined in this Agreement (“Severance Benefits”) if, and only if, Executive
signs this Agreement and complies with its terms. Executive understands that
Executive is not entitled to the Severance Benefits except under this
Agreement.
(b) Executive
acknowledges and agrees that he has 90 days from December 31, 2005 to exercise
any options validly granted to Executive under the NYFIX, Inc. 2001 Stock
Option
Plan or the NYFIX, Inc. or the Amended and Restated 1991 Incentive and
Nonqualified Stock Option Plan that were vested as of December 31, 2005,
as
reflected in the Statement attached as Exhibit A, and that such exercise
shall
be in accordance with the procedures attached as Exhibit B.
(c) In
consideration of Executive signing this Agreement and in exchange for the
promises, covenants, and waivers set forth herein (and without any other
legal
obligation to do so), the Company agrees to: (i) pay Executive One hundred
and
ninety three thousand eight hundred and forty six dollars and fifteen cents
($193,846.15), which is equal to 32 weeks’ salary, which would not otherwise be
paid, minus required and authorized withholding deductions; and (ii) provide
continuation, paid for by NYFIX, Inc. for 32 weeks, which is the period of
time
equal to the total number of weeks payable as the severance amounts described
in
subsection (i) above, of group medical and dental benefits under the provisions
of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985. Following
the 32-week period, Executive may continue health insurance coverage until
the
end of the COBRA period by paying the monthly insurance premium in full each
month, provided that Executive meets all applicable eligibility
requirements.
3. (a) In
consideration of the payment and benefits described in this Agreement, the
covenants and agreements included herein, and for other good and valuable
consideration, Executive, on behalf of Executive and Executive’s heirs,
administrators, representatives, executors, successors, and assigns, hereby
expressly and irrevocably waives, releases, acquits and forever discharges
the
Company and
its
current and former parent companies, affiliates, subsidiaries, divisions
and
related entities and the current and former Executives,
executives, managers, officers, directors, owners, shareholders, investors,
representatives, administrators, fiduciaries, agents, attorneys, insurers,
successors and assigns of each of them and Executive benefit programs of
any of
them (and the trustees, administrators, fiduciaries and insurers of any such
programs) and any other person acting by, through, under, or in concert with
any
of the aforementioned persons or entities (collectively, the “Company Released
Parties”) from
all
debts, obligations, promises, covenants, agreements, contracts, endorsements,
bonds, controversies, suits, actions, causes of action, counterclaims,
crossclaims,
judgments,
damages, expenses, claims or demands, in law or equity, which Executive ever
had, now has, or which may arise in the future, regarding any matter arising
on
or before the date of Executive’s execution of this Agreement, including but not
limited to all claims (whether known or unknown) regarding Executive’s
employment with or termination of employment from the Company or any current
or
former subsidiary or affiliate of the Company, all claims based on any contract
(express or implied, including any employment agreement between the Company
and
Executive), fraud, misrepresentation, stock fraud, defamation, wrongful
termination, estoppel, retaliation, intellectual property, personal injury,
spoliation of evidence, emotional distress, public policy, wage and hour
law,
statute or common law, claims for severance pay, claims related to stock
options, whether stock option grants, stock option exercises (or non-exercises)
or otherwise, health benefits and/or fringe benefits, claims for attorneys’
fees, vacation pay, sick pay or bonuses, debts, accounts, any benefit plan,
any
claim for equitable relief or recovery of punitive, compensatory, or other
damages or monies, attorneys’ fees, any tort, all claims arising under any
federal, state or local statute, law, rule, regulation or ordinance, all
claims
for alleged discrimination based upon any protected category, including race,
color, sex, age, religion, sexual orientation, disability or national origin,
including any claim, asserted or unasserted, which could arise under Title
VII
of the Civil Rights Act of 1964; the Age Discrimination in Employment Act
of
1967; the Americans with Disabilities Act of 1990; the Executive Retirement
Income Security Act of 1974; the Family and Medical Leave Act of 1993; the
Civil
Rights Act of 1991; the Fair Labor Standards Act; the New York State Human
Rights Law; the New York City Human Rights Law; the Connecticut Fair Employment
Practices Act; or any other federal, state or local statute, law, rule,
regulation or ordinance of any kind. Executive does not waive or release:
(i)
any claim regarding any matter arising after the execution of this Agreement;
(ii) any claim Executive may have against any employee benefit and/or pension
plan or funds for accrued and vested benefits under any Company employee
benefit
plan or vested stock options; or (iii) any claim that Executive may have
for
defense and indemnification under the terms of the Company by-laws or insurance
policies (including Directors & Officers policies) with respect to actions
or conduct that occurred on or before the Effective Date, regardless of whether
the Executive makes the claim before or after the Effective Date, provided
that
the Executive makes any such claim in a timely manner.
(b) Except
as
otherwise provided in paragraph 20 of this Agreement, Executive hereby
represents and agrees that Executive has not filed any lawsuit against the
Company or any other Company Released Party or filed or caused to be filed
any
charge or complaint against the Company or any other Company Released Party
with
any municipal, state, or federal agency charged with the enforcement of any
law.
Except as otherwise provided in paragraph 20 of this Agreement, Executive
also
agrees, to the extent consistent with applicable law,
not
to initiate any legal action, charge, or complaint against the Company or
any
other Company Released Party in any forum whatsoever in connection with the
claims released by Executive in this Agreement. In addition, to the extent
any
such action may be brought, Executive expressly waives any claim to any form
of
monetary or other damages, or any other form of recovery or relief in connection
with any such action, or in connection with any action brought by a third
party.
(c) The
Company hereby waives, releases and discharges Executive from any claims
it may
have against him, whether known or unknown, which the Company ever had, now
has
or which may arise in the future regarding any matter arising on or before
the
date of execution of this Agreement, including but not limited to all claims,
whether known or unknown, regarding Executive’s employment with or termination
of employment from the Company or any current or former subsidiary or affiliate
of the Company, except the Company does not waive or release: (i) any claim
regarding any matter arising after the execution of this Agreement; (ii)
any
claim regarding any act of Executive that would constitute a criminal act
under
state or federal law; or (iii) any claim regarding any willful misconduct
or
gross negligence on the part of the Executive materially injurious to the
Company, any
of
its
subsidiaries or affiliates, or any customer or supplier of the Company or
any of
its subsidiaries or affiliates.
(d) Executive
represents and warrants that Executive is the sole owner of the claims Executive
releases herein and has not directly or indirectly transferred or assigned
any
such claims to anyone else, and Executive has the full right and power to
execute the releases and agreements in this Agreement.
4. Subject
to the provisions of Section 3, Executive acknowledges and understands that
Executive is releasing claims against Released Parties regarding any matter
arising on or before the Effective Date, and that Executive has released
and
waived claims and rights hereunder knowingly
and voluntarily, in exchange for consideration in addition to anything of
value
to which such Party already is entitled.
5. [Intentionally
omitted]
6. Executive
acknowledges that employment with the Company has brought Executive into
close
contact with many confidential affairs of the Company, including information
about the Company’s trade secrets, proprietary information, products and
methods, client lists, financial affairs, books and records, commitments,
procedures, plans and prospects, products and technologies in development,
strategies, current or prospective transactions or business of the Company,
costs, profits, markets, sales, products, key personnel, pricing policies,
operational methods, technical processes, business affairs and methods, and
other information not readily available to the public (collectively,
“Confidential Information”). Executive further acknowledges that the business of
the Company is international in scope, that its products and services are
marketed throughout the world, that the Company competes in nearly all of
its
business activities with other entities that are or could be located in nearly
any part of the world, and that the nature of Executive’s services, position and
expertise are such that Executive is capable of competing with the Company
from
nearly any location in the world. In recognition of the foregoing, Executive
hereby covenants and agrees:
(a) Executive
shall keep secret all confidential and proprietary matters of the Company,
including the Confidential Information, and shall not intentionally disclose
such matters to anyone outside of the Company at any time, except with the
Company’s written consent, provided that: (i) Executive shall have no such
obligation to the extent such matters are or become publicly known other
than as
a result of Executive’s breach of any obligation hereunder; and (ii) Executive
shall have no such obligation to the extent such matters are received by
Executive from a third party with the right to disclose it.
(b) Executive
shall keep
every term of this Agreement confidential and will not hereafter disclose
the
existence of this Agreement, the fact that a separation agreement was being
discussed or considered, the substance or contents of this Agreement, or
the
amount or fact of payment of money or provision of benefits (collectively
“Separation Issues”) to any person or persons, or engage in any other conduct
that suggests the negotiation or existence or amount or extent or terms of
this
Agreement; provided,
however,
that
(i) Executive may disclose the fact, existence and terms of the
non-solicitation, non-compete, and confidentiality provisions set forth in
this
Section 6 to prospective employers and business partners who request such
information; (ii) Executive may disclose information concerning the Separation
Issues to Executive’s tax advisors, attorneys, and immediate family, provided
that Executive inform such individuals that they must not reveal such
information to any third party and must maintain the strictest confidentiality
regarding such information; and (iii)
Executive
may
disclose the information described in Sections 6(a) and (b) of this Agreement
pursuant to a subpoena, court order, or other judicial or regulatory or
governmental process, provided that Executive shall first notify the Company
in
writing of the request for such disclosure and cooperate fully with the Company
to legally resist disclosure of the information prior to actual compliance
with
the request.
(c) Executive
agrees that Executive will not denigrate, disparage, defame, impugn or otherwise
damage or assail the reputation or integrity of the Company. The Company
agrees
that it will not denigrate, disparage, defame, impugn or otherwise damage
or
assail the reputation or integrity of the Executive.
(d) Executive
Agrees to cooperate with the Company in connection with any current or future
inquiries or investigations by any governmental authority or agency (e.g.
SEC),
or any lawsuit by any third party involving the company, its officers and
directors (present or past), or the Executive. The Company shall advance
Executive reasonable legal and other expenses incurred in obtaining
representation for such inquiry, investigation or lawsuit upon: (i) receipt
of
notice from Executive of such inquiry, investigation or lawsuit; (ii) approval
of Company’s Board of Directors for such advancement of expenses, which approval
will not be unreasonably withheld; (iii) an undertaking by Executive to repay
such advances where required by applicable law; and (iv) documentation of
such
expenses as is reasonably requested by the Company.
(e) Executive
reserves all rights to any applicable defense or indemnification under the
terms
of the Company’s by-laws or insurance policies (including Directors &
Officers policies) with respect to actions or conduct that occurred on or
before
the Effective Date, regardless of whether Executive makes such a claim before
or
after the Effective Date, provided that Executive makes any such claim in
a
timely manner.
(f) Executive
shall not, for a period of 12 months after
the
Effective Date, without the prior written consent of the Company: (i) employ
or
solicit for employment, directly or indirectly, on Executive’s own behalf or on
behalf of any entity with which Executive is affiliated, any person who
was
employed by the Company, or any of its subsidiaries or affiliates, at any
time
within the 12 months prior to the Effective Date; or (ii) induce or encourage
any such person to leave the employ of the Company, or any of its subsidiaries
or affiliates. This provision shall not apply to any employee of the Company
terminated as of the Effective Date.
(g) Executive
shall not, for a period of 32 weeks after the Effective Date, without the
prior
written consent of the Company, accept any employment, provide any services,
advice or information, or assist or engage in any activity, directly or
indirectly, with any
Competing Business (as defined below), whether as an Executive, owner,
consultant, independent contractor, partner, joint venturer, or in any
other
capacity, whether paid or unpaid; provided,
however,
that
the foregoing shall not be deemed to prohibit Executive from acquiring,
solely
as an investment and through market purchases, securities of any entity
which
are registered under Section 12(b) or 12(g) of the Securities Exchange
Act of
1934 and which are publicly traded, so long as Executive is not part of
any
control group of such entity and such securities, if converted, do not
constitute more than five percent (5%) of the outstanding voting power
of that
entity.
(h) Executive
shall not, for a period of 12 months after
the
Effective Date, without the prior written consent of the Company, directly
or
indirectly solicit or encourage, or attempt to solicit or encourage, any
client
or customer of the Company or its affiliates with whom Executive had
dealings
or about whom Executive acquired confidential or proprietary information
during
employment with the Company to do business with any Competing
Business.
(i) For
purposes of this Agreement, “Competing Business” means the
following companies: Advanced Financial Applications, Brass (a subsidiary
of
SunGard), Flextrade, LLC, Portware, LLC, royalblue group, Lava Trading, TNS,
and
any division of Thomson Financial that directly competes with the Company
or any
of its subsidiaries or affiliates.
(j) Executive
acknowledges that: (i) the terms of this Section 6 are reasonable and
necessary to protect the Company’s legitimate interests; (ii) this
Section’s restrictions will not prevent Executive from earning or seeking a
livelihood; (iii) this Section’s restrictions shall apply wherever
permitted by law; and (iv) Executive’s violation of any of this Section’s
terms would irreparably harm the Company. In
addition to such other rights and remedies as the Company may have at equity
or
in law with respect to any breach of this Agreement, if Executive violates
any
of the provisions of this Section 6, the Company shall have the right and
remedy
to have such provisions specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and that money
damages will not provide an adequate remedy to the Company. Executive
agrees
that if Executive sues or otherwise initiates a legal action against the
Company
or any of the Company Released Parties asserting any claims that are released
in
Section 3 hereof, or if Executive breaches any promise made in this Section
6,
Executive will pay the reasonable attorneys’ fees, costs, and damages that the
Company or any Company Released
Party may incur as a result thereof, and all remaining provisions of this
Agreement shall remain in full force and effect.
(k) In
the
event that any court of competent jurisdiction determines that
any
paragraph
or
clause of this
Section 6 is not enforceable or is void due to public policy or for any
other
reason, then the paragraph or clause involved shall be redrafted as consistent
as possible with the intent of this Section 6 so as to be enforceable.
In the
event such paragraph or clause cannot be so drafted, then such paragraph
or
clause shall be deemed to not be a part of this Section 6, and all other
provisions of this Section 6 and this Agreement shall remain in full effect
and
enforceable.
7. Executive
understands and agrees that Executive’s obligations under Section 6 above are
material inducements to the Company to enter into this Agreement. Without
limiting the Company Released Parties’ remedies in any way, Executive agrees
that the Company and the other Released Parties shall be entitled to seek
specific enforcement or any other mode of injunctive and/or other equitable
relief (without the necessity of showing any actual damage or posting a
bond or
furnishing any other security) to prevent any breach of Section 6 and/or
to
enforce their rights under such Section by
any
court having jurisdiction, it being acknowledged and agreed that any such
breach
or threatened breach will cause irreparable injury to the Company or another
Company Released Party, as the case may be, and that money damages will
not
provide an adequate remedy to the Company or any other affected Company
Released
Party. Nothing in this Section 7 shall be construed to limit the right
of the
Company or any other affected Company Released Party to collect money damages
if
Executive breaches any provision of this Agreement, including, without
limitation, Section 6 hereof. Executive agrees
to
reimburse the Company Released Parties for all costs and expenses (including
without limitation court costs and reasonable attorneys’ fees) incurred by any
of them in enforcing any provision of this Agreement.
8. Executive
agrees that Executive will cooperate fully with the Company in the resolution
of
any disputes or litigation which the Company may face for which Executive
may
have knowledge of any facts or events, material or otherwise and, except
where
prohibited by applicable law, Executive will not voluntarily discuss any
such
disputes, litigation, facts or events with anyone
other
than the Company. The Company agrees that any such requests for cooperation
will
be reasonable and where feasible shall occur during non-business hours unless
by
mutual agreement. The Company agrees to reimburse Executive for any reasonable
costs incurred by Executive in connection with carrying out Executive’s
obligations under this section 8.
9. Within
two business days after the Effective Date, Executive will return to the
Company
all remaining files, memoranda, documents, records, copies of the foregoing,
the
Company-provided credit cards, keys, building passes, security passes, access
or
identification cards, computer and telephone equipment, and any other property
of the Company in Executive’s possession or control, including any written,
electronic, or computerized materials, records, files, and documents made
by
Executive or coming into Executive’s possession during the course of employment
with the Company which contain or refer to the Confidential Information.
Executive agrees that if Executive owes any amounts to the Company for
non-business-related charges on a Company-issued credit card or cellular
telephone or otherwise, Executive hereby authorizes
the Company to deduct the full value of such amounts from any payments owed
to
Executive under this Agreement, up to a maximum of $500 per bi-weekly pay
period.
10. Nothing
in this Agreement is intended to or shall be construed as an admission by
the
Executive, the Company or any other Released Party that any of them violated
any
law, interfered with any right, breached any obligation or otherwise engaged
in
any improper or illegal conduct with respect to Executive, the Company or
any of
the other Executive or Company Released Parties or otherwise. Each of the
Executive, the Company and other Released Parties expressly denies any such
illegal or wrongful conduct.
11. This
Agreement constitutes the entire agreement between Executive and the Company
with respect to the subject matter hereof, and supersedes and cancels all
prior
written or oral agreements, if any, between Executive and the Company with
respect to such subject matter, including any Employment Agreement between
Executive and the Company. Executive affirms that, in entering into this
Agreement, Executive is not relying upon any oral or written promise or
statement made by anyone at any time on behalf of the
Company.
12. Executive
agrees to send all communications to the Company in writing, by certified
or
overnight mail, addressed as follows (or in any other manner the Company
notifies Executive to use):
Xxxxx
Xxxx-Xxxxxxxx
Director-Human
Resources
NYFIX,
Inc.
000
Xxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx Xxxx
Xxxxxxxx,
XX 00000
with
a
copy to:
Xxxxx
Xxxxxxxx
General
Counsel
NYFIX,
Inc.
000
Xxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx Xxxx
Xxxxxxxx,
XX 00000
13. No
provisions of this Agreement may be modified, waived, amended or discharged
except by a written document signed by Executive and a duly authorized Company
officer.
14. This
Agreement binds Executive’s heirs, administrators, representatives, executors,
successors, and assigns, and will inure to the benefit of all Company Released
Parties and their respective heirs, administrators, representatives, executors,
successors, and assigns. This Agreement binds the Company and its successors
and
assigns and will inure to the benefit of Executive’s heirs, administrators,
representatives, executors, successors, and assigns.
15. The
invalidity or unenforceability of any provision of this Agreement shall
not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect. A waiver of any condition
or
provision of this Agreement in a given instance shall not be deemed a waiver
of
such condition or provision, or any other condition or provision, at any
other
time. If any provision, term or clause of this Agreement is declared illegal,
unenforceable or ineffective in a legal forum, such provision, term or
clause
shall be deemed severable, such that all other provisions, terms and clauses
of
this Agreement shall remain valid and binding upon both parties.
16. The
validity, interpretation, construction, and performance of this Agreement
shall
be governed by the internal laws of the State of New York (excluding any
that
mandate the use of another jurisdiction’s laws). The
parties agree that any action to enforce the terms of this Agreement shall
be
brought in state or federal court located in the County of New York, New
York;
provided,
however,
that an
action by the Company to enforce its rights under Section 6 may be brought
in
any court of competent jurisdiction, which court shall apply the internal
laws
of the State of New York (excluding
any that mandate the use of another jurisdiction’s laws).
17. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together shall constitute the
same
instrument.
18. This
Agreement shall be construed as a whole according to its fair meaning,
and shall
not be construed strictly for or against Executive or the Company. Unless
the
context indicates otherwise, the singular or plural number shall be deemed
to
include the other.
19. Any
compensation or benefits payable under this Agreement shall be subject
to
applicable federal, state and local withholding taxes and allowances, where
appropriate.
20. Notwithstanding
any other provision of this Agreement to the contrary:
(a)
The
Company and Executive agree that, by entering into this Agreement, Executive
does not waive rights or claims that may arise after the date this Agreement
is
executed.
(b)
The
Company and Executive agree that this Agreement shall not affect the
rights and
responsibilities of the Equal Employment Opportunity Commission (the
“EEOC”) to
enforce the ADEA and other laws, and further agree that this Agreement
shall not
be used to justify interfering with Executive’s protected right to file a charge
or participate in an investigation or proceeding conducted by the EEOC.
The
Company and Executive further agree that Executive knowingly and voluntarily
waives all rights or claims (that arose prior to Executive’s execution of this
Agreement) that Executive may have against the Releasees, or any of them,
to
receive any benefit or remedial relief (including, but not limited to,
reinstatement, back pay, front pay, damages, and attorneys’ fees) as
a
consequence
of any charge filed with the EEOC, and of any litigation concerning any facts
alleged in any such charge.
(c) This
Agreement shall not affect or be used to interfere with Executive’s protected
right to test in any court, under the Older Worker Benefit Protection Act,
or
like statute or regulation, the validity of the waiver of rights set forth
in
this Agreement.
(d) The
Company and Executive agree that, for a period of seven (7) days following
the
execution of this Agreement, Executive has the right to revoke this Agreement
by
written notice to:
Xxxxx
Xxxx-Xxxxxxxx
Director-Human
Resources
NYFIX,
Inc.
000
Xxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx Xxxx
Xxxxxxxx,
XX 00000
with
a
copy to:
Xxxxx
Xxxxxxxx
General
Counsel
NYFIX,
Inc.
000
Xxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx Xxxx
Xxxxxxxx,
XX 00000
The
Company and Executive further agree that this Agreement shall not become
effective or enforceable until the eighth (8th) day after the execution of
this
Agreement; and that in the event Executive revokes this Agreement prior to
the
eighth (8th) day after the execution of this Agreement, this Agreement, and
the
promises contained in this Agreement, shall automatically be deemed null
and
void.
(e) The
Company hereby advises and urges Executive in writing to consult with an
attorney prior to executing this Agreement. Executive represents and warrants
that the Company gave Executive a period of at least forty-five (45) days
in
which to consider this Agreement before executing this Agreement, and that
at
the commencement of such greater than forty-five (45) day period the Company
provided to Executive a copy of Exhibit C, which is annexed hereto.
(f)
Executive’s
acceptance of the monies paid by the Company, as described in Paragraph 2(c)
of
this Agreement, at any time more than seven (7) days after the execution
of this
Agreement shall constitute an admission by Executive that Executive did not
revoke this Agreement during the revocation period of seven (7) days; and
shall
further constitute an admission by Executive that this Agreement has become
effective and enforceable.
(g) If
Executive executed this Agreement at any time prior to the end of the greater
than forty-five (45) day period that the Company gave Executive in which
to
consider this
Agreement, such early execution was a knowing and voluntary waiver of
Executive’s right to consider this Agreement for at least forty-five (45) days,
and was due to Executive’s belief that Executive had ample time in which to
consider and understand this Agreement, and in which to review this Agreement
with an attorney.
CONSULT
WITH A LAWYER BEFORE SIGNING THIS AGREEMENT AND RELEASE.
BY
SIGNING THIS AGREEMENT YOU GIVE UP AND WAIVE IMPORTANT LEGAL
RIGHTS.
THE
PARTIES STATE THAT THEY HAVE READ THE FOREGOING, UNDERSTAND EACH OF ITS TERMS,
AND INTEND TO BE BOUND THEREBY:
|
Executive
Name
|
NYFIX, INC. | |||
|
By:
|
/s/
Xxxxx Xxxxxxxx
|
By:
|
/s/
Xxxxx Xxxxxxxx
|
|
|
(Please
sign)
|
||||
|
Date:
|
2/17/2006
|
Title:
|
Secretary
and General Counsel
|
|
|
Date:
|
2/21/2006
|
|||
EXHIBIT
A
| Grant Detail Report |
NYFIX,
Inc.
|
From
/ /
to / /
As of 12/31/2005
As of 12/31/2005
|
Xxxxx
Xxxxxxxx
000
Xxxxxx X’Xxxxx Xxxx
Xxxxxxxxx,
XX 00000
|
||||||||
|
Grant
Date
|
Expiration
Date
|
Plan
ID
|
Grant
Type
|
Options
Granted
|
Option
Price
|
Options
Outstanding
|
Options
Vested
|
Options
Exercisable
|
|
1/2/1998
|
3/30/2006
|
1991
SOP
|
Incentive
|
22,500
|
$3.390000
|
2,650
|
22,500
|
2,650
|
|
Transactions
|
||||||||
|
Date
|
Type
|
Options
|
Price
|
|
|
|
||
|
6/9/2000
|
Exercise
|
14,850
|
$39.880000
|
|
|
|
||
|
6/21/2002
|
Exercise
|
5,000
|
$9.250000
|
|
|
|
||
|
10/14/1998
|
3/30/2006
|
1991
SOP
|
Incentive
|
13,500
|
$2.640000
|
9,000
|
13,500
|
9,000
|
|
Transactions
|
||||||||
|
Date
|
Type
|
Options
|
Price
|
|
|
|
||
|
6/9/2000
|
Exercise
|
4,500
|
$39.880000
|
|
|
|
||
|
4/13/1999
|
3/30/2006
|
1991
SOP
|
Incentive
|
2,250
|
$3.000000
|
1,125
|
2,250
|
1,125
|
|
Transactions
|
||||||||
|
Date
|
Type
|
Options
|
Price
|
|
|
|
||
|
6/9/2000
|
Exercise
|
1,125
|
$39.880000
|
|
|
|
||
|
1/25/2000
|
3/30/2006
|
1991
SOP
|
Incentive
|
6,750
|
$14.750000
|
6,750
|
6,750
|
6,750
|
|
10/23/2001
|
3/30/2006
|
2001
SOP
|
Non-Qualified
|
12,500
|
$12.020000
|
12,500
|
12,500
|
12,500
|
|
10/23/2001
|
10/22/2002
|
2001
SOP
|
Non-Qualified
|
12,500
|
$12.020000
|
0
|
12,500
|
0
|
|
Transactions
|
||||||||
|
Date
|
Type
|
Options
|
Price
|
|
|
|
||
|
10/22/2002
|
Cancel:
Expired
|
12,500
|
|
|
|
|
||
|
6/10/2002
|
3/30/2006
|
2001
SOP
|
Non
Qualified
|
11,370
|
$8.500000
|
11,370
|
11,370
|
11,370
|
|
6/10/2002
|
3/30/2006
|
2001
SOP
|
Incentive
|
18,630
|
$8.500000
|
18,630
|
18,630
|
18,630
|
|
8/16/2002
|
3/30/2006
|
2001
SOP
|
Incentive
|
24,000
|
$3.920000
|
24,000
|
24,000
|
24,000
|
|
2/23/2004
|
3/30/2006
|
2001
SOP
|
Incentive
|
10,000
|
7.056000
|
3,334
|
3,334
|
3,334
|
|
Transactions
|
||||||||
|
Date
|
Type
|
Options
|
Price
|
|
|
|
||
|
12/30/2005
|
Cancel:
Terminated
|
6,666
|
|
|
|
|
||
|
Optionee
Total
|
134,000
|
|
89,359
|
127,334
|
89,359
|
|||
EXHIBIT
B
NYFIX,
Inc.
Employee
Stock Option Exercise Form
Employee
Name_______________________________________________________________
Social
Security Number / National Insurance Number
___________________________________
Address_____________________________________________________________________
_____________________________________________________________________
City
________________________________ State ________ Zip /Postal Code
______________
Exercise
of _____________ shares at ___________ per share exercise price equals
$US_______, which I agree to remit to NYFIX when I am requested to do
so.
Employee’s
original per share exercise price _______________ granted on ____/____/____
(price may be different that the above price due to stock splits)
(mm/ dd
/year)
Name(s)
to be reflected on stock
certificate___________________________________________
NOTE:
Stock certificates will be issued in electronic form via the DWAC system.
In
order to facilitate this you must provide the name of your brokerage firm
and
your brokerage account number. If you do not want your shares issued
electronically and you want to receive the actual stock certificate, leave
the
following brokerage lines blank and
notify the company in writing that you want the shares issued in certificate
form and provide a mailing address.
Employee
Brokerage Firm Name
___________________________________________________
Employee
Brokerage Account #
___________________________________________________
Employee
Brokerage DTC #
______________________________________________________
Employee
Signature____________________________________________________________
Date
____/____/____
(mm
/ dd
/year)
_
_ _ _ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _
_ _ _ _ _ _ _ _
(Company
use
only)
Stock
Option Control Number _______________
Letter
sent to Transfer Agent ____ yes
Issuance
notification sent to employee ___yes
NYFIX,
Inc.
Employee
Stock Option Exercise Process
Introduction:
NYFIX
will issue shares when the procedures below are followed for valid Options
and
when the company is in a position to issue shares. If the Company is not
in a
position to issue shares your request to exercise will remain in force until
the
Company
is
in a position to issue shares, at which time you will be asked to make the
appropriate payment. When you make the payment, the Company will deliver
shares. On the date that the Company issues you shares, it will take note
of the market price of the Company’s common stock on the date your exercise
notice was received.
Special
note for existing employees with valid Options:
You may
exercise your valid Options at any time when there are no restrictions against
exercising. The Company will advise you when such restrictions are in place
and
when they have been lifted.
Special
note for ex-employees, separated from the Company:
You have
90 days from the day of your separation to exercise any valid Options that
were
vested as of the day of your separation. If you do not so notify NYFIX all
your rights under the Stock Option Plan expire at the end of the 90-day
period.
Notes:
|
1.
|
The
term employee below refers to either an existing employee or an
ex-employee, separated from the
Company.
|
|
2.
|
This
procedure addresses situations where payment for and delivery of
shares of
NYFIX stock will be completed before December 31, 2006, unless
otherwise
determined.
|
STEP
1:
Employee
complete and sign the Employee Stock Option Exercise Form
STEP
2: Employee
submit completed Stock Option Exercise Form to Human Resources, Attention:
Xxxxx
Xxxx-Xxxxxxxx. Form submission is a two step process. Both steps must be
completed, within the noted time frames, for the exercise to be
valid
|
·
|
Email
a copy of the completed Stock Option Exercise Form (obviously without
signature) to Xxxxx. The business date the email is received by
Xxxxx is
the date of the exercise. Emails received after 5pm NY time will
be dated
the next business day for exercise purposes. Emails received on
a non
business day will be dated the next business date for exercise
purposes.
|
|
·
|
Send
or hand deliver the original, signed form to any HR representative
within
3 business days of the email. HR will email a confirmation of receipt
when
the signed form is received. Advise HR is this confirmation is
not
received within 4 business days of the original
email.
|
STEP
3: After
receipt of signed Employee Stock Option Exercise Form, NYFIX will advise
employee if the Company is in a position to issue shares. NYFIX will request
payment for the shares to be exercised when the shares will be
issued.
STEP
4: Employee,
when NYFIX requests payment:
Arrange
for US$ payment to be made for exercise of options (exercise price x number
of
shares being exercised). Checks should be made payable to NYFIX, Inc. If
payment
is via a personal check, NYFIX will wait 5 business days before processing
the
exercise. If payment will be via wire transfer, please use the following
instructions:
|
·
|
[Contact
and Bank Account Information
Omitted]
|
or,
mail
to:
|
·
|
NYFIX,
Inc.
|
|
Attn:
Xxxxx Xxxx-Xxxxxxxx
|
|
|
Corporate
Headquarters
|
|
000
Xxxxxx Xxxxxx
|
|
Xxxxxxxx,
XX 00000
|
STEP
5: NYFIX,
when payment received, will send a letter to its transfer agent instructing
them
to issue shares.
STEP
6: NYFIX
will notify employee when the shares have been issued. If shares are being
transferred electronically via the DWAC system, NYFIX will also provide employee
with information that employee’s brokerage firm will need to initiate the
retrieval of the shares from the DWAC system. It
is up to the employee to contact his/her broker and provide them with this
information otherwise shares will not get credited to employee’s brokerage
account. Employee’s brokerage firm has to initiate the DWAC in order for
employee to receive the shares. If
shares will
be
issued in certificate form, the transfer agent will send the certificate
to
employee via overnight delivery at the address provided.
EXHIBIT
C
SPECIAL
PAYMENT PROGRAM
To
be
eligible for the special payment program (the “Program”) described in Paragraph
2(c) of the Agreement and General Release (the “Agreement”), an individual must
have been employed by NYFIX, Inc. (the “Company”) in its offices in New York
City or Stamford, CT, and whose employment with the Company has terminated
or
will be terminated on December 31, 2005. All Executives who are eligible
for
this Program have at least forty-five (45) days in which to consider, sign
(before a notary public), and return the Agreement to:
Xxxxx
Xxxx-Xxxxxxxx
Director-Human
Resources
NYFIX,
Inc.
000
Xxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx Xxxx
Xxxxxxxx,
XX 00000
with
a
copy to:
Xxxxx
Xxxxxxxx
General
Counsel
NYFIX,
Inc.
000
Xxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx Xxxx
Xxxxxxxx,
XX 00000
The
job
titles and ages of the individuals eligible for this Program in affected
job
classifications within the Company are:
|
Title
|
Ages
|
|
President,
NYFIX, USA
|
34
|
There
are
no other individuals in the same job classifications.
Job
classifications not affected are omitted from this
list.
