EMPLOYMENT AGREEMENT
Exhibit
10.2
EMPLOYMENT
AGREEMENT
This
EMPLOYMENT AGREEMENT is made and entered into as of this 4th
day of
September, 2006, by and between NYFIX, Inc. (the “Company”),
and
Xxxxxx Xxxxxxxxx (“Employee”).
W
I T N E S
S
E
T
H
:
WHEREAS,
the Company desires to employ Employee and to enter into an agreement embodying
the terms of such employment (this “Agreement”)
and
Employee desires to enter into this Agreement and to accept such employment,
subject to the terms and provisions of this Agreement.
NOW,
THEREFORE, in consideration of the promises and mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are mutually acknowledged, the Company and Employee hereby
agree as follows:
Section
1. Definitions.
(a) “Accrued
Obligations”
shall
mean (i) all accrued but unpaid Base Salary through the date of termination
of
Employee’s employment hereunder; (ii) any unpaid or unreimbursed expenses
incurred in accordance with Company policy, including amounts due under
Section
7
hereof
to the extent incurred prior to termination of employment; (iii) any benefits
provided under the Company’s employee benefit plans upon a termination of
employment, in accordance with the terms therein; and (iv) any rights to
indemnification pursuant to Section
12
hereof
or otherwise by virtue of Employee’s position as an officer or director of the
Company or its subsidiaries and the benefits
under any directors’ and officers’ liability insurance policy maintained by the
Company, in accordance with its terms thereof.
(b) “Affiliate”
shall
mean, as to any Person, any other Person that controls, is controlled by, or
is
under common control with, such Person.
(c) “Annual
Bonus”
shall
have the meaning set forth in Section
4(b)
below.
(d) “Base
Salary”
shall
mean the salary, and any increase thereof, provided for in Section
4(a)
below.
(e) “Board”
shall
mean the Board of Directors of the Company.
(f) “Cause”
shall
mean (i)
any
act of gross negligence or willful misconduct on the part of Employee in the
course of his employment hereunder, which is, or could reasonably be expected
to
result in, material injury to the business or reputation of the Company or
its
affiliates; (ii) willful failure or refusal by Employee to perform in any
material respect his duties or responsibilities under the employment agreement;
(iii) misappropriation by Employee of any assets or business opportunities
of
the Company or any of its Affiliates; (iv) embezzlement or fraud committed
by
Employee or at his direction; (v) Employee’s conviction by a court of competent
jurisdiction of, or pleading “guilty” or “no contest” to, (x) a felony, or (y)
any other crime of moral turpitude;
or (vi)
Employee’s breach of any material provision of
the
employment agreement.
For
purposes of this definition, no act or failure to act shall be deemed “willful”
unless done or omitted in bad faith or without a reasonable belief that such
act
or omission was in the best interests of the Company.
(g) “Change
in Control”
(i)
the
acquisition by any person, directly or indirectly, through a purchase, merger
or
other acquisition transaction,
or series of purchases, mergers or other acquisition transactions, of shares
of
Common Stock representing 50% or more of the total shares of Common Stock then
outstanding; (ii) a consolidation, merger, reorganization or other form of
acquisition of or by the Company or other transaction in which the Company’s
shareholders retain less than 40% (by vote or value) of the surviving entity
upon consummation of such transaction; (iii) a sale or other transfer of
substantially all of the Company’s assets or (iv) the individuals who were
directors of the Company immediately prior to the Closing Date (together with
the directors appointed by Warburg
Pincus Private Equity IX, L.P. and
any
new directors whose election or appointment was approved by the directors then
in office who were either directors as of the Closing Date or whose election
or
appointment was previously so approved) ceasing to constitute a majority of
the
board of directors of the Company or any surviving entity immediately after
the
Closing Date.
(h) “Closing
Date”
shall
have the meaning set forth in the Purchase Agreement.
(i) “Code”
shall
mean the Internal Revenue Code of 1986, as amended.
(j) “Commencement
Date”
shall
mean September 5, 2006.
(k) “Common
Stock”
shall
mean common stock, par value $0.001 per share, of the Company.
(l) “Company”
except
as otherwise expressly set forth herein, shall have the meaning set forth in
the
preamble hereto.
(m)
“Competitive
Activities”
shall
mean any business activities in which the Company or any of its subsidiaries
are
engaged (or
have
committed plans to engage) during
the Term of Employment,
or,
following termination of Employee’s employment hereunder, were engaged in (or
had committed plans to engage in) at the time of such termination of
employment.
(n)
“Confidential
Information”
shall
mean confidential or proprietary trade secrets, client lists, client identities
and information, information regarding service providers, investment
methodologies, marketing data or plans, sales plans, management organization
information, operating policies or manuals, business plans or operations or
techniques, financial records or data, or other financial, commercial, business
or technical information (i)
relating to the Company or any of its subsidiaries, or (ii) that the Company
or
any of its subsidiaries may receive belonging to suppliers, customers or others
who do business with the Company,
but
shall exclude any information that is in the public domain or hereafter enters
the public domain, in each case without the breach by Employee of Section
9(a)
below.
(o)
“Developments”
shall
have the meaning set forth in Section
9(d)
below.
(p) “Disability”
shall
mean any physical or mental disability or infirmity that prevents the
performance of Employee’s duties for a period of (i) ninety (90) consecutive
days or (ii) one hundred twenty (120) non-consecutive days during any twelve
(12) month period. Any question as to the existence, extent or potentiality
of
Employee’s Disability upon which Employee and the Company cannot agree shall be
determined by a qualified, independent physician selected by the Company and
approved by Employee (which approval shall not be unreasonably withheld). The
determination of any such physician shall be final and conclusive for all
purposes of this Agreement.
(q) “Employee”
shall
have the meaning set forth in the preamble hereto.
(r) “Good
Reason”
shall
mean, without Employee’s consent, (i)
any
reduction in Base Salary, (ii) the relocation of Employee’s principal place of
employment outside of the New York metropolitan area, or (iii) a breach by
the
Company of any material provision of the employment agreement.
(s) “Interfering
Activities”
shall
mean (i) encouraging, soliciting, or inducing, or in any manner attempting
to
encourage, solicit, or induce, any individual employed by, or individual or
entity providing consulting services to, the Company or any of its subsidiaries
to terminate such employment or consulting services; provided, that the
foregoing shall not be violated by general advertising not targeted at employees
or consultants of the Company; (ii) hiring any individual who was employed
by
the Company or any of its subsidiaries within the six (6) month period prior
to
the date of such hiring; or (iii) encouraging, soliciting or inducing, or in
any
manner attempting to encourage, solicit or induce any customer, supplier,
licensee or other business relation of the Company or any of its subsidiaries
to
cease doing business with or materially reduce the amount of business conducted
with the Company or its subsidiaries, or in any way interfere with the
relationship between any such customer, supplier, licensee or business relation
and the Company or its subsidiaries.
(t) “Person”
shall
mean any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust (charitable or non-charitable),
unincorporated organization or other form of business entity.
(u) “Purchase
Agreement”
shall
mean that certain Securities Purchase Agreement by and between the Company
and
the Warburg Investors, dated even herewith.
(v) “Restricted
Area”
shall
mean any State of the United States of America or any other jurisdiction in
which the Company or its subsidiaries are engaged (or have committed plans
to
engage) in business during the Term, or, following termination of Employee’s
employment, were engaged (or had committed plans to engage) in business at
the
time of such termination of employment.
(w) “Restricted
Period”
shall
mean the period commencing on the date of the employment agreement and extending
to the twelve (12) month anniversary of Employee’s termination of employment for
any reason; provided,
however,
that
the Company may elect, by providing Employee written notice of such election
within three (3) months following any termination of employment, to extend
the
Restricted Period by up to an additional twelve (12)
months
following the date of such termination, in which case, the Company shall be
required to pay Employee an amount equal to his monthly Base Salary plus
one-twelfth (1/12th)
of
Employee’s target Annual Bonus during each month of the applicable period of
extension.
(x) “Severance
Term”
shall
mean the twelve (12) month period immediately following Employee’s termination
of employment hereunder by the Company without Cause or by Employee with Good
Reason.
(y) “Term
of Employment”
shall
mean the period specified in Section
2
below.
(z) “Warburg
Investors”
shall
mean Warburg
Pincus Private Equity IX, L.P. and any other fund affiliated with Warburg Pincus
& Co., a New York general partnership.
Section
2. Acceptance
and Term of Employment.
The
Company agrees to employ Employee and Employee agrees to serve the Company
on
the terms and conditions set forth herein. The
Term
of
Employment shall commence on the
Commencement Date and shall continue until Employee is terminated as
provided
in Section 8 hereof.
Section
3. Position,
Duties and Responsibilities; Place of Performance.
(a) During
the Term of Employment, Employee shall be employed and serve as the Chief
Executive Officer of the Company and shall have such duties typically associated
with such title. Subject to the foregoing, Employee also agrees to serve as
an
officer and/or director of the Company or any parent or subsidiary of the
Company, as specified by the Board, in each case without additional
compensation. In addition, as soon as practicable following the Commencement
Date, Employee shall be appointed to the Board, and shall serve as a member
of
the Board during the Term of Employment without additional
compensation.
(b) Subject
to the terms and conditions set forth in this Agreement, Employee shall devote
his full business time, attention, and efforts to the performance of his duties
under this Agreement and shall not engage in any other business or occupation
during the Term of Employment, including, without limitation, any activity
that
(x) conflicts with the interests of the Company or its subsidiaries, (y)
interferes with the proper and efficient performance of his duties for the
Company, or (z) interferes with the exercise of his judgment in the Company’s
best interests. Notwithstanding the foregoing, nothing herein shall preclude
Employee from (i) serving, with the prior written consent of the Board, as
a
member of the board of directors or advisory boards (or their equivalents in
the
case of a non-corporate entity) of non-competing businesses and charitable
organizations, (ii) engaging in charitable activities and community affairs,
(iii) subject to the terms and conditions set forth in Section
9
hereof,
managing his personal investments and affairs, and (iv) performing such
activities set forth on Exhibit
A,
attached hereto; provided,
however,
that
the activities set out in clauses (i), (ii), (iii) and (iv) shall be limited
by
Employee so as not to materially interfere, individually or in the aggregate,
with the performance of his duties and responsibilities hereunder.
(c) Employee’s
principal place of employment shall be at the Company’s New York, New York
offices, although Employee understands and agrees that he may be required to
travel from time to time in the connection with his performance of duties
hereunder.
Section
4. Compensation.
During
the Term of Employment, Employee shall be entitled to the following
compensation:
(a) Base
Salary.
Employee shall be paid an annualized Base Salary, payable in accordance with
the
regular payroll practices of the Company, of not less than $495,000, subject
to
increase, if any, as may be approved in writing by the Board, but not to
decrease from the then current Base Salary.
(b) Annual
Bonus.
Employee shall be eligible for an annual incentive bonus award determined by
the
Board in respect of each fiscal year during the Term of Employment, commencing
with the fiscal year ending December 31, 2007 (the “Annual
Bonus”).
The
target Annual Bonus for each fiscal year shall be 100% of Base Salary. The
actual Annual Bonus payable in respect of each fiscal year shall be based upon
the level of achievement of annual Company performance objectives for such
fiscal year, as determined by the Board in consultation with
Employee.
In
connection with its determination of annual performance objectives, the Board
and Employee will also determine Annual Bonus amounts in excess of the target
Annual Bonus for achievement in excess of target performance objectives.
Notwithstanding the foregoing, (i) the Annual Bonus payable in respect
of the year ending December 31, 2006 shall in no event be less than 50% of
the Base Salary paid to Employee through December 31, 2006, which shall be
pro
rated to reflect the number of days Employee is employed by the Company during
such fiscal year; and (ii) the Annual Bonus payable in respect
of the Company's fiscal year ending December 31, 2007 shall in no event be
less
than 50% of Base Salary. The Annual Bonus shall be paid to Employee at the
same
time as annual bonuses are generally payable to other senior executives of
the
Company.
(c) Equity
Compensation.
As
soon as practicable following the Commencement Date, the Company shall grant
Employee significant equity compensation in the form of stock options or
restricted stock (or as may otherwise be mutually agreed by Employee and the
Board) under either its existing incentive plans, or a new plan adopted by
the
Company following the Commencement Date. During any period of time that Employee
has not received such options pursuant to this subsection (c), in lieu of the
guaranteed Annual Bonus being calculated at 50% of Base Salary for such period
(as set forth in Section
4(b)
above
for the period ending December 31, 2007), the guaranteed Annual Bonus during
such period shall be 100% of Base Salary (e.g.,
if
equity options are not granted until half-way through the fiscal year ending
December 31, 2007, the guaranteed Annual Bonus for such period shall equal
½ *
100% of Base Salary plus ½ * 50% of Base Salary).
Section
5. Employee
Benefits.
During
the Term of Employment, Employee shall be entitled to participate
in health, insurance, retirement and other perquisites and benefits generally
provided to other senior executives of the Company that are made available
from
time to time, provided that the Company’s health plan shall in any event provide
Employee with primary care coverage in the
greater
Boston, Massachusetts area. Employee shall also be entitled to the same number
of holidays, vacation and sick days as are generally allowed to senior
executives of the Company in accordance with Company policies in effect from
time to time, but in no event less than four (4) weeks vacation per year and
life insurance coverage at up to 3 times Base Salary (subject to insurability
at
commercially reasonable rates).
Section
6. “Key-Man”
Insurance.
At
any
time during the Term of Employment, the Company shall have the right to insure
the life of Employee for the sole benefit of the Company, in such amounts,
and
with such terms, as it may determine. All premiums payable thereon shall be
the
obligation of the Company. Employee shall have no interest in any such policy,
but agrees to reasonably cooperate with the Company in taking out such insurance
by submitting to physical examinations, supplying all information reasonably
required by the insurance company, and executing all necessary documents,
provided that no financial obligation or liability is imposed on Employee by
any
such documents.
Section
7. Reimbursement
of Business Expenses; Moving Allowance.
(a) Employee
is authorized to incur reasonable business expenses in carrying out his duties
and responsibilities under this Agreement and the Company shall promptly
reimburse him for all such reasonable business expenses incurred in connection
with carrying out the business of the Company, subject to documentation in
accordance with the Company’s policy, as in effect from time to
time.
(b) The
Company shall provide Employee a one-time moving allowance equal to $150,000,
such amount to be paid to Employee, subject to his continued employment, on
or
prior to the Company’s first regularly scheduled payroll date of the 2007
calendar year.
Section
8. Termination
of Employment.
(a) General.
The Term of Employment shall terminate upon the earliest to occur of (i)
Employee’s death, (ii) a termination by reason of a Disability, (iii) a
termination by the Company with or without Cause, or (iv) a termination by
Employee with or without Good Reason. Upon
any
termination of Employee’s employment for any reason, except as may otherwise be
requested by the Company in writing and agreed upon in writing by Employee,
Employee shall resign from any and all directorships, committee memberships
or
any other positions Employee holds with the Company or any of its subsidiaries
or Affiliates.
(b) Termination
due to Death or Disability.
Employee’s employment shall terminate automatically upon his death. The
Company may terminate Employee’s employment immediately upon the occurrence of a
Disability, such termination to be effective upon Employee’s receipt of written
notice of such termination. In
the
event Employee’s employment is terminated due to his death or Disability,
Employee or his estate or his beneficiaries, as the case may be, shall be
entitled to:
(i) the
Accrued Obligations;
-6-
Exhibit
10.2-Xxxxxxxxx Employment Agreement
(ii) any
unpaid Annual Bonus in respect to any completed fiscal year which has ended
prior to the date of such termination, such amount to be paid at the same time
it would otherwise be paid to Employee had no such termination occurred;
and
(iii) provided
that applicable annual performance objectives are achieved for the fiscal year
in which such termination occurs, a
pro
rata Annual Bonus (determined using the target
Annual Bonus if such termination occurs on or prior to December 31, 2007, and
using the Annual Bonus paid or payable for the immediately prior fiscal year
for
terminations after December 31, 2007)
based on
the number of days elapsed from the commencement of such fiscal year through
and
including the date of such termination, such amount to be paid when the Annual
Bonus would otherwise have been paid absent such termination.
Except
as
set forth in this Section
8(b),
following Employee’s termination by reason of his death or Disability, Employee
shall have no further rights to any compensation or any other benefits under
this Agreement.
(c) Termination
by the Company for Cause.
(i) A
termination for Cause shall not take effect unless the provisions of this
subsection (i) are complied with. Employee shall be given not less than fifteen
(15) days written notice by the Board of the intention to terminate his
employment for Cause, such notice to state in detail the particular act or
acts
or failure or failures to act that constitute the grounds on which the proposed
termination for Cause is based. Employee shall have fifteen (15) days after
the
date that such written notice has been given to Employee in which to cure such
act or acts or failure or failures to act, to the extent such cure is possible.
If he fails to cure such act or acts or failure or failures to act, the
termination shall be effective on the date immediately following the expiration
of the fifteen (15) day notice period. If cure is not possible, the termination
shall be effective on the date of receipt of such notice by Employee. During
any
cure period provided hereunder, the Board may,
in its
sole and absolute discretion, prohibit
Employee from entering the premises of the Company (or any subsidiary thereof)
or otherwise performing his duties hereunder, and any such prohibition shall
in
no event constitute an event pursuant to which Employee may terminate employment
with Good Reason; provided,
however,
that if
cure is possible, and Employee can reasonably demonstrate to the Board that
he
desires to enter the premises of the Company (or a subsidiary thereof) or to
otherwise perform his duties hereunder solely to attempt to cure the act or
acts
or failure or failures to act that constitute the grounds on which the proposed
termination for Cause is based, Employee shall be permitted to enter the
premises of the Company (or a subsidiary thereof) or otherwise to perform his
duties hereunder solely for the purposes of curing such act or acts or failure
or failures to act.
(ii) In
the
event the Company terminates Employee’s employment for Cause, he shall be
entitled only to the Accrued Obligations.
Following such termination of Employee’s employment for Cause, except as set
forth in this Section
8(c)(ii),
Employee shall have no further rights to any compensation or any other benefits
under this Agreement.
-7-
Exhibit
10.2-Xxxxxxxxx Employment Agreement
(d) Termination
by the Company without Cause.
The Company may terminate Employee’s employment at any time without Cause,
effective upon Employee’s receipt of written notice of such termination. In the
event Employee’s employment is terminated by the Company without Cause (other
than due to death or Disability), Employee shall be entitled to:
(i)
the
Accrued Obligations;
(ii) any
unpaid Annual Bonus in respect to any completed fiscal year which has ended
prior to the date of such termination, such amount to be paid at the same time
it would otherwise be paid to Employee had no such termination occurred;
(iii) provided
that applicable annual performance objectives are achieved for the fiscal year
in which such termination occurs, a
pro
rata Annual Bonus (determined using the target
Annual Bonus if such termination occurs on or prior to December 31, 2007, and
using the Annual Bonus paid or payable for the immediately prior fiscal year
for
terminations after December 31, 2007)
based on
the number of days elapsed from the commencement of such fiscal year through
and
including the date of such termination, such amount to be paid when the Annual
Bonus would otherwise have been paid absent such termination
(iv) continuation
of Base Salary for the Severance Term, payable in accordance with the Company’s
regular payroll practices,
(v)
an
amount
equal to the greater of (x) two (2) times the Annual Bonus paid or payable
in
respect of the fiscal year immediately preceding the fiscal year in which such
termination occurs, or (y) 150% of Base Salary, such amount to be paid in
substantially equal installments over the Severance Term and at the same times
as Base Salary continuation is paid pursuant to sub-clause (iv) above;
(vi) continuation,
during the Severance Term, of the health and life insurance benefits provided
to
Employee and his covered dependents under the Company’s health plans in effect
as of the date of such termination, it being understood and agreed that (A)
Employee shall be required to pay that portion of the cost of such health and
life insurance benefits as Employee was required to pay (including through
customary deductions from Employee’s paycheck) as of the date of Employee’s
termination of employment with the Company, and (B) notwithstanding the
foregoing, the Company’s obligation to provide such continuation of benefits
shall terminate prior to the expiration of the Severance Term in the event
that
Employee becomes eligible to receive any such or similar benefits while employed
by or providing service to, in any capacity, any other business or entity during
the Severance Term;
(vii) reimbursement
for reasonable expenses incurred by Employee for executive outplacement
assistance; and
(viii) if
such
termination occurs within the twelve (12) month period following a Change in
Control, acceleration of vesting on all equity granted pursuant to Section
4(c)
above.
-8-
Exhibit
10.2-Xxxxxxxxx Employment Agreement
Notwithstanding
the foregoing, the payments and benefits described in subsections (iii) through
(vii) above shall immediately cease, and the Company shall have no further
obligations to Employee with respect thereto, in the event that Employee
breaches any provision of Section
9
hereof.
Following
such termination of Employee’s employment by the Company without Cause, except
as set forth in this Section
8(d),
Employee shall have no further rights to any compensation or any other benefits
under this Agreement.
(e) Termination
by Employee with Good Reason.
Employee may terminate his employment with Good Reason by providing the Company
fifteen (15) days’ written notice setting forth with reasonable specificity the
event that constitutes Good Reason, which written notice, to be effective,
must
be provided to the Company within sixty (60) days of the occurrence of such
event. During such fifteen (15) day notice period, the Company shall have a
cure
right (if curable), and if not cured within such period, Employee’s termination
will be effective upon the date immediately following the expiration of the
fifteen (15) day notice period, and Employee shall be entitled to the same
payments and benefits as provided in Section
8(d)
above
for a termination without Cause, it being agreed that Employee’s right to any
such payments and benefits shall be subject to the same terms and conditions
as
described in Section
8(d)
above.
Following such termination of Employee’s employment by Employee with Good
Reason, except as set forth in this Section
8(e),
Employee shall have no further rights to any compensation or any other benefits
under this Agreement.
(f) Termination
by Employee without Good Reason.
Employee may terminate his employment without Good Reason by providing the
Company sixty (60) days’ written notice of such termination. In the event of a
termination of employment by Employee under this Section
8(f),
Employee shall be entitled only to the Accrued Obligations. In
the
event of termination of Employee’s employment under this Section
8(f),
the
Company may, in its sole and absolute discretion, by written notice accelerate
such date of termination and still have it treated as a termination without
Good
Reason. Following
such termination of Employee’s employment by Employee without Good Reason,
except as set forth in this Section
8(f),
Employee shall have no further rights to any compensation or any other benefits
under this Agreement.
(g) Release.
Notwithstanding any provision herein to the contrary, the Company may require
that, prior to payment of any amount or provision of any benefit pursuant to
subsections (d)
or
(e)
of this
Section
8
(other
than the Accrued Obligations), Employee
shall have executed a general release in substantially the same form as attached
hereto as Exhibit
B,
and any
waiting periods contained in such release shall have expired.
Section
9. Restrictive
Covenants.
Employee acknowledges and agrees that (A) the agreements and covenants contained
in this Section
9
are (i)
reasonable and valid in geographical and temporal scope and in all other
respects, and (ii) essential to protect the value of the Company’s business and
assets, and (B) by his employment with the Company, Employee will obtain
knowledge, contacts, know-how, training and experience and there is a
substantial probability that such knowledge, know-how, contacts, training
and
experience could be used to the substantial advantage of a competitor of
the
Company and to the Company’s
-9-
Exhibit
10.2-Xxxxxxxxx Employment Agreement
substantial
detriment. For purposes of this Section
9,
references to the Company shall be deemed to include its
subsidiaries.
(a) Confidential
Information.
At any time during and after the end of the Term of Employment, without the
prior written consent of the Board, except to the extent required by an order
of
a court having jurisdiction or under subpoena from an appropriate government
agency, in which event, Employee shall, to the extent legally permitted, consult
with the Board prior to responding to any such order or subpoena, and except
as
he in good faith believes necessary or desirable in the performance of his
duties hereunder, Employee shall not disclose to or use for the benefit of
any
third party any Confidential Information.
(b) Non-Competition.
Employee
covenants and agrees that during the Restricted Period, Employee shall not,
directly or indirectly, individually or jointly, own any interest in, operate,
join, control or participate as a partner, director, principal, officer, or
agent of, enter into the employment of, act as a consultant to, or perform
any
services for any Person (other than the Company), that engages in any
Competitive Activities within the Restricted Area. Notwithstanding anything
herein to the contrary, this Section
9(b)
shall
not prevent Employee from acquiring as an investment securities representing
not
more than three percent (3%) of the outstanding voting securities of any
publicly-held corporation or from being a passive investor in any mutual fund,
hedge fund, private equity fund or similar pooled account so long as Employee’s
interest therein is less than three percent (3%) and he has no role in selecting
or managing investments thereof.
(c) Non-Interference.
During the Restricted Period, Employee shall not, directly or indirectly, for
his own account or for the account of any other Person, engage in Interfering
Activities.
(d) Return
of Documents.
In the event of the termination of Employee’s employment for any reason,
Employee shall deliver to the Company all of (i) the property of the Company,
and (ii) the documents and data of any nature and in whatever medium of the
Company, and he shall not take with him any such property, documents or data
or
any reproduction thereof, or any documents containing or pertaining
to
any
Confidential Information.
(e) Works
for Hire.
Employee agrees that the Company shall own all
right,
title and interest throughout the world in and to any and all inventions,
original works of authorship, developments, concepts, know-how, improvements
or
trade secrets, whether or not patentable or registerable under copyright or
similar laws, which Employee may solely or jointly conceive or develop or reduce
to practice, or cause to be conceived or developed or reduced to practice during
the Term of Employment, whether or not during regular working hours, provided
they either (i) relate at the time of conception or development to the actual
or
demonstrably proposed business or research and development activities of the
Company; (ii) result from or relate to any work performed for the Company;
or
(iii) are developed through the use of Confidential Information and/or Company
resources or in consultation with Company personnel (collectively referred
to as
“Developments”).
Employee
hereby assigns all right, title and interest in and to any and all of these
Developments to the Company. Employee agrees to assist the Company, at the
Company’s expense (but for no other consideration of any kind), to further
evidence, record and perfect such assignments, and to perfect, obtain, maintain,
enforce, and
-10-
Exhibit
10.2-Xxxxxxxxx Employment Agreement
defend
any rights specified to be so owned or assigned. Employee hereby irrevocably
designates and appoints the Company and its agents as attorneys-in-fact to
act
for and on Employee’s behalf to execute and file any document and to do all
other lawfully permitted acts to further the purposes of the foregoing with
the
same legal force and effect as if executed by Employee. In addition, and not
in
contravention of any of the foregoing, Employee acknowledges that all original
works of authorship which are made by him (solely or jointly with others) within
the scope of employment and which are protectable by copyright are “works made
for hire,” as that term is defined in the United States Copyright Act (17 USC
Sec. 101). To the extent allowed by law, this includes all rights of paternity,
integrity, disclosure and withdrawal and any other rights that may be known
as
or referred to as “moral rights.” To the extent Employee retains any such moral
rights under applicable law, Employee hereby waives such moral rights and
consents to any action consistent with the terms of this Agreement with respect
to such moral rights, in each case, to the full extent of such applicable law.
Employee will confirm any such waivers and consents from time to time as
requested by the Company.
(f) Blue
Pencil.
If any court of competent jurisdiction shall at any time deem the duration
or
the geographic scope of any of the provisions of this Section
9
unenforceable, the other provisions of this Section
9
shall
nevertheless stand and the duration and/or geographic scope set forth herein
shall be deemed to be the longest period and/or greatest size permissible by
law
under the circumstances, and the parties hereto agree that such court shall
reduce the time period and/or geographic scope to permissible duration or
size.
Section
10. Breach
of Restrictive Covenants.
Without
limiting the remedies available to the Company, Employee acknowledges that
a
breach of any of the covenants contained in Section
9
hereof
may result in material irreparable injury to the Company or its subsidiaries
for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of such
a
breach or threat thereof, the Company (or any subsidiary thereof, as applicable)
shall be entitled to obtain a temporary restraining order and/or a preliminary
or permanent injunction, without the necessity of proving irreparable harm
or
injury as a result of such breach or threatened breach of Section
9
hereof,
restraining Employee from engaging in activities prohibited by Section
9
hereof
or such other relief as may be required specifically to enforce any of the
covenants in Section
9
hereof.
Section
11. Representations
and Warranties of Employee.
Employee
represents and warrants to the Company that:
(a) Employee’s
employment will not conflict with or result in his breach of any agreement
to
which he is a party or otherwise may be bound;
(b) Employee
has not violated, and in connection with his employment with the Company will
not violate, any non-solicitation, non-competition or other similar covenant
or
agreement of a prior employer by which he is or may be bound; and
-11-
Exhibit
10.2-Xxxxxxxxx Employment Agreement
(c) In
connection with Employee’s employment with the Company, he will not use any
confidential or proprietary information that he may have obtained in connection
with employment with any prior employer.
Section
12. Indemnification
Subject
to the terms and conditions of the Articles of Association and By-Laws of the
Company (in each case, as in effect from time to time), the Company agrees
to
indemnify and hold Employee harmless to the fullest extent permitted by the
laws
of the State of Delaware, as in effect at the time of the subject act or
omission. In connection therewith, Employee shall be entitled to the protection
of insurance policies, which the Company shall maintain at commercially
reasonable levels, for
the
benefit of the Company’s directors and officers, against all costs, charges and
expenses whatsoever incurred or sustained by Employee in connection with any
action, suit or proceeding to which he may be made a party by reason of his
being or having been a director, officer or employee of the Company.
This
provision shall survive any termination of Employee’s employment
hereunder.
Section
13. Taxes.
The
Company may withhold from any payments made under this Agreement all applicable
taxes, including but not limited to income, employment and social insurance
taxes, as shall be required by law. Employee
acknowledges and represents that the Company has not provided any tax advice
to
him in connection with this Agreement and that he has been advised by the
Company to seek tax advice from his own tax advisors regarding this Agreement
and payments that may be made to him pursuant to this Agreement,
including specifically, the application of the provisions of Section 409A of
the
Code to such payments.
Section
14. Mitigation;
Set Off.
The
Company’s obligation to pay Employee the amounts provided and to make the
arrangements provided hereunder shall be subject to set-off, counterclaim or
recoupment of amounts owed by Employee to the Company or its Affiliates.
Employee shall not be required to mitigate the amount of any payment provided
for pursuant to this Agreement by seeking other employment or otherwise and
the
amount of any payment provided for pursuant to this Agreement shall not be
reduced by any compensation earned as a result of Employee’s other employment or
otherwise.
Section
15. Delay
in Payment.
Notwithstanding
any provision in this Agreement to the contrary, any payment otherwise required
to be made hereunder to Employee at any date as a result of the termination
of
Employee’s employment shall be delayed for such period of time as may be
necessary to meet the requirements of section 409A(a)(2)(B)(i) of the Code.
On
the earliest date on which such payments can be made without violating the
requirements of section 409A(a)(2)(B)(i) of the Code, there shall be paid to
Employee, in a single cash lump sum, an amount equal to the aggregate amount
of
all payments delayed pursuant to the preceding sentence.
-12-
Exhibit
10.2-Xxxxxxxxx Employment Agreement
Section
16. Agreement
to Further Review and Revise.
The
parties agree to review and revise this Agreement to the extent necessary
to
avoid adverse consequences under section 409A of the Code.
Section
17. Cooperation.
(a) Employee
recognizes that the Company or its Affiliates may become involved in disputes
with third parties, or with present or former employees, or become subject
to
regulatory investigations, or obligated by law to conduct internal
investigations, concerning matters relating to Employee's employment or his
areas of responsibility. In such situations following Employee's termination,
the Company may determine that it needs Employee's assistance. Upon the
Company's request to Employee with reasonable advance notice, Employee will
confer with the Company or its designees, or otherwise provide the information
that Employee has, including the location and identity of potentially relevant
documents and other potential sources of relevant information, and shall,
if
necessary, meet in person with senior management or their representatives.
The
Company shall pay Employee in advance for Employee's costs and compensate
him
for the time devoted to such assistance above a de minimus amount at a mutually
agreeable rate and shall, in any event, reimburse Employee all of his reasonable
and necessary expenses associated with such cooperation.
(b) Should
Employee be required by subpoena or other legal process or law ("Legal Demand")
to provide information relating to his employment in any forum or to any
governmental agency then, in advance of Employee's formal or informal (if any)
response, Employee shall, within four (4) days of his receipt of the Legal
Demand, provide written notice to the Company, to the attention of its General
Counsel or chief legal officer.
Section
18. Successors
and Assigns; No Third-Party Beneficiaries.
(a) The
Company.
This Agreement shall inure to the benefit of and be enforceable by, and may
be
assigned by the Company to, any purchaser of all or substantially all of the
Company’s business or assets or any successor to the Company (whether direct or
indirect, by purchase, merger, consolidation or otherwise). The Company will
require in a writing delivered to Employee any such purchaser, successor or
assignee to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform
it
if no such purchase, succession or assignment had taken place. The Company
may
make no other assignment of this Agreement or its obligations hereunder.
(b) Employee.
Employee’s rights and obligations under this Agreement shall not be transferable
by Employee by assignment or otherwise, without the prior written consent of
the
Company; provided,
however,
that if
Employee shall die, all amounts then payable to Employee hereunder shall be
paid
in accordance with the terms of this Agreement to Employee’s devisee, legatee or
other designee or, if there be no such designee, to Employee’s
estate.
(c) No
Third-Party Beneficiaries.
Except as otherwise set forth in Section
8(b)
or
Section 18(b)hereof, nothing expressed or referred to in this Agreement will
be
construed to give any Person other than the Company and Employee any legal
or
equitable right, remedy or claim under or with respect to this Agreement or
any
provision of this Agreement.
-13-
Exhibit
10.2-Xxxxxxxxx Employment Agreement
Section
19. Waiver
and Amendments.
Any
waiver, alteration, amendment or modification of any of the terms of this
Agreement shall be valid only if made in writing and signed by each of the
parties hereto; provided,
however,
that
any such waiver, alteration, amendment or modification is consented to on the
Company’s behalf by the Board. No waiver by either of the parties hereto of
their rights hereunder shall be deemed to constitute a waiver with respect
to
any subsequent occurrences or transactions hereunder unless such waiver
specifically states that it is to be construed as a continuing
waiver.
Section
20. Severability.
If
any
covenants or other provisions of this Agreement are found to be invalid or
unenforceable by a final determination of a court of competent jurisdiction:
(a)
the remaining terms and provisions hereof shall be unimpaired, and (b) the
invalid or unenforceable term or provision hereof shall be deemed replaced
by a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision
hereof.
Section
21. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES
THEREOF) APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE. All
actions and proceedings arising out of or relating to this Agreement shall
be
heard and determined in any New York state or federal court sitting in the
city
of New York, and the parties hereto hereby consent to the jurisdiction of such
courts in any such action or proceeding.
Section
22. Reimbursement
of Legal Fees.
The
Company will reimburse Employee for all reasonable attorneys’ fees incurred by
Employee in connection with the negotiation of the employment
agreement.
Section
23. Termination
of Purchase Agreement
In
the
event that the transactions contemplated under the Purchase Agreement terminate
without closing, this Agreement shall automatically terminate on the date of
such termination, and other than with respect to the Accrued Obligations,
neither the Company nor Employee shall have any obligations to the other under
this Agreement, and all payments and benefits shall cease as of such
termination.
Section
24. Notices.
(a) Every
notice or other communication relating to this Agreement shall be in writing,
and shall be mailed to or delivered to the party for whom it is intended at
such
address as may from time to time be designated by it in a notice mailed or
delivered to the other party as herein provided, provided that, unless and
until
some other address be so designated, all notices
-14-
Exhibit
10.2-Xxxxxxxxx Employment Agreement
or
communications by Employee to the Company shall be mailed or delivered to the
Company at its principal executive office, and all notices or communications
by
the Company to Employee may be given to Employee personally or may be mailed
to
Employee at Employee’s last known address, as reflected in the Company’s
records.
(b) Any
notice so addressed shall be deemed to be given: (i) if delivered by hand,
on
the date of such delivery; (ii) if mailed by courier or by overnight mail,
on
the first business day following the date of such mailing; and (iii) if mailed
by registered or certified mail, on the third business day after the date of
such mailing.
Section
25. 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, affect
the meaning or interpretation of this Agreement or of any term or provision
hereof.
Section
26. Entire
Agreement.
This
Agreement constitutes the entire understanding and agreement of the parties
hereto regarding the employment of Employee. This Agreement supersedes all
prior
negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this
Agreement.
Section
27. Survival
of Operative Sections.
Upon
any
termination of Employee’s employment, the provisions of Section
8
through
Section
28
of this
Agreement (together with any related definitions set forth in Section
1
hereof)
shall survive to the extent necessary to give effect to the provisions
thereof.
Section
28. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original but all of which together shall constitute one and
the
same instrument. The execution of this Agreement may be by actual or facsimile
signature.
* * *
[Signatures
to appear on the following page.]
-15-
Exhibit
10.2-Xxxxxxxxx Employment Agreement
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
|
NYFIX,
INC.
|
|
| /s/ Xxxxxx X. Xxxxxxxxx | |
|
By:
Xxxxxx X. Xxxxxxxxx
Title:
Chief Financial Officer
|
|
|
|
|
|
EMPLOYEE
|
|
| /s/ Xxxxxx Xxxxxxxxx |
-16-
Exhibit
A
Outside
Activities
SkillSoft
PLC -- director and related strategic assistance.
BT
Radianz -- existing separation and transition commitments.
Exhibit
B
Form
of Release
Release
of Claims
1. Xxxxxx
Xxxxxxxxx (“Employee”),
for
himself and his family, heirs, executors, administrators, legal representatives
and their respective successors and assigns, as an express condition of, and
in
exchange for the consideration contained in, Section 8 of the Employment
Agreement to which this release is attached as Exhibit
A
(the
“Employment
Agreement”),
which
Employee acknowledges is in addition to any amounts to which he would have
otherwise been entitled but for the Employment Agreement and execution of this
Release of Claims, effective the date hereof, do fully and forever release,
remise and discharge the Company, its direct and indirect parents, subsidiaries
and affiliates, together with their respective officers, directors, partners,
shareholders, employees and agents (collectively, and with the Company, the
“Group”)
from
any and all claims which Employee had, may have had, or now have against the
Group, for or by reason of any matter, cause or thing whatsoever, including
any
claim arising out of or attributable to Employee’s employment or the termination
of Employee’s employment with the Company, including but not limited to claims
of breach of contract, wrongful termination, unjust dismissal, defamation,
libel
or slander, or under any federal, state or local law dealing with discrimination
based on age, race, sex, national origin, handicap, religion, disability or
sexual preference. This release of claims includes, but is not limited to,
all
claims arising under the Age Discrimination in Employment Act (“ADEA”),
Title
VII of the Civil Rights Act, the Americans with Disabilities Act, the Civil
Rights Act of 1991, the Family Medical Leave Act, the Equal Pay Act, the New
York Human Rights Law, the New York City Administrative Code, each as may be
amended from time to time, and all other federal, state and local labor and
anti-discrimination laws, the common law and any other purported restriction
on
an employer’s right to terminate the employment of employees. As used in this
Release of Claims, the term “claims” will include all claims, covenants,
warranties, promises, undertakings, actions, suits, causes of action,
obligations, debts, accounts, attorneys’ fees, judgments, losses and
liabilities, of whatsoever kind or nature, in law, equity or otherwise. Employee
specifically releases all claims relating to Employee’s employment and its
termination under ADEA, a United States federal statute that, among other
things, prohibits discrimination on the basis of age in employment and employee
benefit plans. Notwithstanding any provision of this paragraph 1 to the
contrary, by executing this Agreement, Employee is not releasing any claims
relating to Employee’s rights to enforce the Company’s obligations under the
Employment Agreement upon his termination.
2. Employee
represents that Employee has not filed or permitted to be filed against the
Group, individually or collectively, any complaints, charges or lawsuits arising
out of Employee’s employment, or any other matter arising on or prior to the
date hereof, and Employee covenants and agrees that Employee will never
individually or with any other person file, or commence the filing of, any
charges, lawsuits, complaints or proceedings with any governmental agency or
otherwise against the Group with respect to the subject matter of this Release
of Claims and claims released pursuant to this Release of Claims (including,
without
limitation,
any claims relating to the termination of Employee’s employment), except as may
be necessary to seek a determination of the validity of the waiver of Employee’s
rights under ADEA. In addition, Employee agrees that Employee will not
voluntarily participate or assist in any judicial, administrative, arbitral
or
other proceedings of any nature or description against the Group brought by
or
on behalf of any administrative agencies or any current or former employees
or
service providers of the Group, other than pursuant to a valid judicial subpoena
or court order.
3. Employee
hereby acknowledges that the Company has informed him that he has up to
twenty-one (21) days to sign this Release of Claims and he may knowingly and
voluntarily waive that twenty-one (21) day period by signing this Release of
Claims earlier. Employee also understands that he shall have seven (7) days
following the date on which he signs this Release of Claims within which to
revoke it by providing a written notice of his revocation to the
Company.
4. Employee
acknowledges that this Release of Claims will be governed by and construed
and
enforced in accordance with the internal laws of the State of Delaware
applicable to contracts made and to be performed entirely within such State.
5. Employee
acknowledges that he has read this Release of Claims, that he has been advised
that he should consult with an attorney before he executes this general release
of claims, and that he understands all of its terms and executes it voluntarily
and with full knowledge of its significance and the consequences thereof.
6. This
Release of Claims shall take effect on the eighth day following Employee’s
execution of this Release of Claims unless Employee’s written revocation is
delivered to the Company within seven (7) days after such
execution.
______________________________
Date:
