NYFIX, INC. 2007 OMNIBUS EQUITY COMPENSATION PLAN NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit 10.9 |
NYFIX, INC.
2007 OMNIBUS EQUITY COMPENSATION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
Non-Qualified Stock Option Agreement (this “Agreement”), dated as of October 2, 2007 (the “Date of Grant”), between NYFIX, Inc. (“NYFIX”) and 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 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 181,369 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 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 (i) 25% of the Options shall vest on March 10, 2008; and (ii) the remaining 75% of the Options shall vest ratably on the 10th day |
If a partial Option would vest on any date, the total number of Options vesting on |
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2.4 Exercise; Restriction on Exercise. No unvested Options shall be (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 3.3 Withholding of Taxes. (i) The Company shall withhold or deduct from any or all payments |
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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 |
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, |
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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.
(i) “Cause” shall mean that the Company has “cause” to terminate the Participant’s employment, as defined in the Employment Agreement between the Participant and the Company dated January 31, 2006 (the “Employment Agreement”). (ii) “Disability” shall mean disability as determined by the Committee in accordance with the standards and procedures similar to those under the Company’s long-term disability plan, if any. If at any time that the Company does not maintain a long-term disability plan, “Disability” shall mean any physical or mental disability which is determined to be total and permanent by a doctor selected in good faith by the Committee. (iii) “Change in Control” shall mean: (a) the sale or disposition, in one or a series of related transactions, of all or substantially all of the assets of NYFIX to any “person” or “group” (as such terms are defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) other than Warburg Pincus Private Equity IX, L.P. or its Affiliates; (b) any person or group, other than Warburg Pincus Private Equity IX, L.P. or its Affiliates, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the voting stock of NYFIX (or, if NYFIX is not the survivor, the survivor), including by way of merger, consolidation or otherwise (other than an offering of Stock to the general public through a registration statement filed with the Securities and Exchange Commission); or (c) any person or group, other than Warburg Pincus Private Equity IX, L.P. or its Affiliates, is or becomes the beneficial owner, directly or indirectly, of 35% or more of the combined voting power of NYFIX’s then outstanding securities during any twelve-month period. (iv) “Good Reason” shall mean that the Participant has “good reason” to terminate his employment, as defined 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 |
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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 most recent primary residential address or business telecopy or email address as shown on the records of the Company. 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 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. 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. 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. |
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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. |
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized officer. |
NYFIX, INC.
By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx |
PARTICIPANT’S ACCEPTANCE |
The Participant acknowledges that he has read this Agreement, has received and read PARTICIPANT /s/ Xxxxxx Xxxxxxxxx |
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