Re: Employment Agreement dated September 4, 2006 between you and NYFIX, Inc. (the “Agreement”).
Exhibit
10.13
December
30, 2008
PERSONAL
& CONFIDENTIAL
Xxxxxx
Xxxxxxxxx
[Home
address redacted]
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Re:
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Employment
Agreement dated September 4, 2006 between you and NYFIX, Inc. (the
“Agreement”).
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Dear
Xxxxxx:
You and
NYFIX, Inc. agree to the following amendments to the Agreement.
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1.
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Section
1(r) is hereby amended to read as
follows:
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“(r)
“Good Reason”
shall mean, without Employee’s consent, (i) any material diminution in base
compensation , (ii) a material change in the geographic location at which
Employee must perform his duties, or (iii) a breach by the Company of any
material provision of the employment agreement.”
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2.
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The
first sentence of Section 1(x) is hereby amended to read as
follows:
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“(x) “Severance Term” shall
mean the twelve (12) month period commencing sixty (60) days following
Employee’s termination of employment hereunder by the Company without Cause or
by Employee with Good Reason, provided that Employee has executed a general
release (as described in Section 8(g) hereof) and any waiting periods contained
in such release have expired prior to the 60th day
following the date of termination.”
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3.
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The
following language is added at the end of the last sentence of Section
4(b):
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“, but in
no event later than March 15 of the calendar year following the year in which
the bonus was earned”
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4.
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The
following language is added at the end of the last sentence of Section
7(a):
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“and
subject to the terms and conditions set forth in Section 16(e)”
Page 1 of
5
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5.
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Subsection
8(b)(i) is hereby amended to read as
follows:
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“(i) the
Accrued Obligations, payable within thirty (30) days of the date of
termination;”
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6.
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The
following language is added at the end of the first sentence of Subsection
8(c)(ii):
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“payable
within thirty (30) days of the date of termination”
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7.
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The
following language is added before the word “Employee” in the second
sentence of Section 8(d):
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“then,
subject to Section 16 hereof,”
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8.
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Subsection
8(d)(i) is hereby amended to read as
follows:
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“(i)
the Accrued Obligations, payable within thirty (30) days of the date of
termination”
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9.
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Subsection
8(d)(vii) is hereby amended to read as
follows:
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“(vii)
reimbursement for reasonable expenses incurred by Employee for executive
outplacement assistance, subject to the terms and conditions set forth in
Section 16(e); and”
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10.
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All
references to “fifteen (15) days” in Section 8(e) are hereby changed to
“thirty (30) days.”
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11.
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The
following language is added at the end of the second sentence of Section
8(f):
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“payable
within thirty (30) days of the date of termination”
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12.
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The
following language is added at the end of Section
8(g):
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“within
sixty (60) days of the date of termination”
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13.
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Section
15 is hereby deleted and replaced with the reference “Intentionally
Omitted.”
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Page 2 of
5
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14.
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Section
15 is hereby deleted and replaced with the
following:
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Section
16. Compliance with
Section 409A.
Subject
to the provisions in this Section 16, any severance payments or benefits under
this Agreement shall begin only upon the date of Employee’s “separation from
service” (determined as set forth below) which occurs on or after the date of
termination of Employee’s employment. The following rules shall apply
with respect to distribution of the payments and benefits, if any, to be
provided to Employee under this Agreement:
(a) It
is intended that each installment of the severance payments and benefits
provided under this Agreement shall be treated as a separate “payment” for
purposes of Section 409A of the Code and the guidance issued thereunder
(“Section 409A”). Neither the Company nor Employee shall have the
right to accelerate or defer the delivery of any such payments or benefits
except to the extent specifically permitted or required by Section
409A.
(b) If,
as of the date of Employee’s “separation from service” from the Company,
Employee is not a “specified employee” (within the meaning of Section 409A),
then each installment of the severance payments and benefits shall be made on
the dates and terms set forth in this Agreement.
(c) If,
as of the date of Employee’s “separation from service” from the Company,
Employee is a “specified employee” (within the meaning of Section 409A),
then:
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(i)
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Each
installment of the severance payments and benefits due under this
Agreement that, in accordance with the dates and terms set forth herein,
will in all circumstances, regardless of when the separation from service
occurs, be paid within the short-term deferral period (as defined in
Section 409A) shall be treated as a short-term deferral within the meaning
of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent
permissible under Section 409A; and
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(ii)
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Each
installment of the severance payments and benefits due under this
Agreement that is not described in Section 16(c)(i) above and that would,
absent this subsection, be paid within the six-month period following
Employee’s “separation from service” from the Company shall not be paid
until the date that is six months and one day after such separation from
service (or, if earlier, Employee’s death), with any such installments
that are required to be delayed being accumulated during the six-month
period and paid in a lump sum on the date that is six months and one day
following Employee’s separation from service and any subsequent
installments, if any, being paid in accordance with the dates and terms
set forth herein; provided, however, that the preceding provisions of this
sentence shall not apply to any installment of severance payments and
benefits if and to the maximum extent that such installment is deemed to
be paid under a separation pay plan that does not provide for a deferral
of compensation by reason of the application of Treasury
Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an
involuntary separation from service). Any installments that
qualify for the exception under Treasury Regulation
Section 1.409A-1(b)(9)(iii) must be paid no later than the last day
of Employee’s second taxable year following the taxable year in which the
separation from service occurs.
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Page 3 of
5
(d) The
determination of whether and when Employee’s separation from service from the
Company has occurred shall be made in a manner consistent with, and based on the
presumptions set forth in, Treasury Regulation Section
1.409A-1(h). Solely for purposes of this Section 16(d), “Company”
shall include all persons with whom the Company would be considered a single
employer as determined under Treasury Regulation Section
1.409A-1(h)(3).
(e) All
reimbursements and in-kind benefits provided under this Agreement shall be made
or provided in accordance with the requirements of Section 409A to the extent
that such reimbursements or in-kind benefits are subject to Section 409A,
including, where applicable, the requirements that (i) any reimbursement is for
expenses incurred during Employee’s lifetime (or during a shorter period of time
specified in this Agreement), (ii) the amount of expenses eligible for
reimbursement during a calendar year may not affect the expenses eligible for
reimbursement in any other calendar year, (iii) the reimbursement of an eligible
expense will be made on or before the last day of the calendar year following
the year in which the expense is incurred and (iv) the right to reimbursement is
not subject to set off or liquidation or exchange for any other
benefit.
If you
are in agreement with the foregoing, kindly execute a copy of this letter and
return it to the undersigned.
— The
remainder of this page is intentionally left blank —
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NYFIX,
Inc.
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Very
truly yours,
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/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx
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Chief
Financial Officer
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Accepted
and Agreed:
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/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx
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December 30, 2008
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