NYFIX, INC. 2007 OMNIBUS EQUITY COMPENSATION PLAN NON-QUALIFIED STOCK OPTION AGREEMENT
| Exhibit 10.12 |
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 Xxxxx Xxxxxxxx (the “Participant”). |
| BACKGROUND |
| Pursuant to the terms of the NYFIX, Inc. 2007 Omnibus Equity Compensation Plan (the “Plan”), 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, 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 30,000 shares of Stock subject to the restrictions and conditions set forth in this Agreement. 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 the Date of Grant. |
| ARTICLE 2 |
| EXERCISABILITY OF OPTIONS |
| All of the Options are unvested on the Date of Grant. Options shall vest upon, but only upon, the earliest to occur of the events described in Section 2.1, 2.2 or 2.3 and shall become |
| exercisable as described in Section 2.5, in each case subject to the limitations set forth in Section 2.5. All unvested Options shall be forfeitable as set forth in Section 2.5 and shall be non- transferable as set forth in Section 5.2. All shares of Stock issued upon exercise of Options shall be transferable, although: (a) transferability may be subject to pre-clearance, blackout, registration and other requirements and restrictions under the Company’s xxxxxxx xxxxxxx and other compliance policies and procedures; and (b) transfers by executive officers should be reviewed in advance to determine if there would be any potential liability for short-swing profits under Section 16(b) of the Securities Exchange Act of 1934. 2.1 Time Vesting. If not sooner vested and unless previously forfeited pursuant to Section 2.5, all of the Options shall vest based on the passage of time as follows: |
| (i) | 25% of the Options shall vest on March 10, 2008; and |
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(ii) the remaining 75% of the Options shall vest ratably on the 10th day of If a partial Option would vest on any date, the total number of Options vesting on (ii) termination of Participant’s employment for any reason other than (iii) expiration as provided in Section 4.1. |
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| 2.6 Change in Control. Except as otherwise provided in this Agreement, the effect of a Change in Control on the Participant’s Options is subject to Section 17 of the Plan. |
| ARTICLE 3 |
| EXERCISE OF OPTIONS |
| 3.1 Person Who Can Exercise. Exercisable Options may only be exercised by the Participant, except that, in the event of the Disability of the Participant, those Options may be exercised by the Participant’s legal guardian or legal representative and, in the event of death, those Options may be exercised by the executor or administrator of the Participant’s estate or the Person or Persons to whom the Participant’s rights under those Options pass by will or the laws of descent and distribution. 3.2 Procedure for Exercise. Exercisable Options may be exercised in whole or in part with respect to any portion thereof that is exercisable. To exercise an exercisable Option, the Participant (or such other Person who shall be permitted to exercise that Option as set forth in Section 3.1) must complete, sign and deliver to the Company an exercise notice in a form to be provided by the Company together with payment in full of the Option Price multiplied by the number of shares of Stock with respect to which that Option is exercised, in accordance with the option exercise procedures of the Company as in effect from time to time. The right to exercise any Option shall be subject to the satisfaction of all conditions set forth in such form of exercise notice. Payment of the Option Price shall be made in cash (including check, bank draft or money order). The Participant’s right to exercise the Option shall be subject to the satisfaction of all conditions set forth in such exercise notice. |
| 3.3 | Withholding of Taxes. |
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(i) The Company shall withhold or deduct from any or all payments or |
| (ii) | The Withholding Amount shall be determined by the Company. |
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(iii) Immediately upon request by the Company, the Participant agrees to (iv) The timing of withholding or deduction from such payments or |
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| ARTICLE 4 |
| EXPIRATION OF OPTIONS |
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4.1 Expiration. Vested and unvested Options shall expire at 5:00 p.m., Eastern 4.2 Earlier Expiration. Notwithstanding Section 4.1, upon the earliest to occur of (i) all unvested Options shall expire as provided in Section 2.5; (ii) upon the Participant’s termination of employment by the Company for |
| (iii) upon the Participant’s termination of employment by the Company without Cause or the Participant’s resignation from employment with the Company other than in connection with death or Disability, all vested Options shall expire upon the earlier of (a) the ninetieth day following the date of such termination or (b) the expiration of the Options under Section 4.1; and (iv) upon the Participant’s termination of employment due to the Participant’s death or Disability, all vested Options shall expire upon the earlier of (a) the 12-month anniversary of the date of such termination or (b) the expiration of the Options under Section 4.1. 4.3 Cancellation. Vested and unvested Options which expire unexercised shall be treated as cancelled. 4.4 Effective Date. For purposes hereof, except as otherwise set forth in Sections 2.5 and 4.2, the date of resignation or termination of employment means the last date of actual employment, even if a different date is used for administrative convenience in connection with employee retirement, benefit or welfare plans. |
| ARTICLE 5 MISCELLANEOUS |
| 5.1 | Definitions. |
| (i) “Cause” shall mean that the Company has “cause” to terminate the Participant’s employment upon: |
| (a) gross neglect or willful misconduct which is or is reasonably expected to be materially and demonstrably injurious to the Company or its customers or vendors; material breach by the Participant of his confidentiality, non-competition or non- solicitation obligations owed to the Company; or willful and continuing refusal or continuing failure (in either case other than due to death or Disability) by the Participant to substantially perform his duties or responsibilities for or owed to the Company; or |
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| (b) conviction of or plea of guilty or no contest by the Participant to a felony or a crime of moral turpitude. (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) “Good Reason” shall mean that the Participant has “good reason” to terminate his employment upon the occurrence of any of the following events without the Participant’s prior written consent: (a) a material reduction in the Participant’s base salary or annual bonus incentive; (b) the assignment of duties materially inconsistent with the Participant’s position or a material reduction in the Participant's responsibilities or authority (in each case in this Clause b), so long as notice that Good Reason has occurred is given by the Participant to the Company within 6 months (or such longer period as the Company may allow) after such occurrence and further provided the Company has not cured the circumstances giving rise to the Good Reason within 10 days of receipt of such notice); or (c) the requirement that the Participant relocate his principal place of employment to a location more than 50 miles from the Participant’s current location. 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 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: |
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| (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 | |
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(ii) If to the Participant, to his most recent primary residential address 5.5 No Right to Continued Employment. The Participant acknowledges and |
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IN WITNESS WHEREOF, the Company has caused this Agreement to be |
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 the Plan, and understands the terms and conditions of this Agreement and the Plan and hereby accepts the foregoing Options and agrees to be bound by the terms and conditions of this Agreement and the Plan. |
PARTICIPANT
Signed /s/ Xxxxx Xxxxxxxx
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