EXECUTIVE AGREEMENT
AGREEMENT made and effective as of the 1st day of January, 2005, by and
between NYFIX, INC. a Delaware corporation with its principal office at 000
Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000, and Xxx Xxxxxxx, residing at 000 X. 00xx
Xxxxxx, Xxx. 00X, Xxx Xxxx, Xxx Xxxx, 00000 (hereinafter "Executive").
In consideration of employment by NYFIX, Inc., a Delaware corporation, or
any subsidiary or affiliate of NYFIX, Inc. (collectively, "NYFIX," "Employer" or
the "Company"), the undersigned Executive and NYFIX hereby agree as follows:
1. EMPLOYMENT.
The Company agrees to employ Executive, and Executive agrees to enter the
employ of the Company for the period stated in Section 3 hereof and upon the
other terms and conditions set forth herein.
2. POSITION AND RESPONSIBILITIES.
During the period of employment hereunder (the "Employment Period"),
Executive agrees to serve as Executive Vice President-Finance and Administration
and report to Xxxxx Xxxxxxxxx Xxxxxx, Chief Executive Officer of the Company.
3. TERM OF EMPLOYMENT.
The Employment Period shall be deemed to have commenced as of January 1,
2005 and shall continue for a period of one year until December 31, 2005 and
renew automatically for one year at a time unless sooner terminated as provided
herein, under Section 19a, or by breach of contract.
4. DUTIES.
During the Employment Period and except for illness, vacation periods, and
reasonable leaves of absence, Executive shall devote substantially all of
Executive's business time, attention, skill, and efforts to the faithful
performance of his or her duties hereunder.
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5. VACATION.
In addition to paid holidays, as defined by the Company's holiday schedule,
Executive shall receive three weeks of paid vacation during the first calendar
year of employment, and four weeks each year thereafter during the Employment
period, with vacation accruing on a prorata basis during each pay period. All
vacation periods shall be scheduled at the convenience of the Employer.
6. COMPENSATION.
(a) BASE SALARY. Employer shall pay Executive as compensation for
Executive's services hereunder a total annual base salary of
$325,000.00. Executive will also be offered to participate in the
Company's health insurance plan(s) and 401(k) plan.
(b) OTHER COMPENSATION. Executive shall also be considered for a
grant of 75,000 options, subject to approval by the Compensation
Committee of the Board of Directors at the next grant date, which
will be determined by that Committee. These options will be ratably
vested over four years, based upon the following schedule: 25,000
at the first anniversary date, 20,000 at the second anniversary
date, and 15,000 each at the third and fourth anniversary dates.
At any point of time the Company reserves the right to extend
special bonuses or incentives which could include stock option
grants. However, such arrangements are solely at the Company's
discretion. Executive shall also be entitled to participate in such
other benefits as may from time to time be generally made available
to the Company's Executives. This Agreement is not obligating the
Company to extend such bonuses or incentives.
7. PAYMENT TERMS.
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The salary payment shall be made in accordance with the usual payroll
system of the Company, presently bi-weekly.
8. REIMBURSEMENT OF EXPENSES.
Employer shall pay or reimburse Executive for all reasonable travel and
other expenses incurred by Executive in performance of Executive's obligations
under this Agreement, provided that Employer approves such expenses in advance.
9. NON-COMPETITION.
(a) Executive will not during the term of his or her employment with the
Company (the "Employment Period") or for the first twelve (12) months
thereafter, either directly or indirectly in any capacity or manner,
without NYFIX prior written approval:
(i) engage in any activity or employment where it could be reasonably
anticipated that Executive would or would be required or expected
to use or disclose any Confidential Information (as defined in
Section 10(d) below) of NYFIX;
(ii) engage in employment or any consulting arrangement with any of
the following companies: Thomson Financial Services' Trade Route
or autex, Transaction Network Services (TNS), Radianz, or
Liquidnet, or any successor-in-interest of any of them;
(iii)except in the course of Executive's duties with NYFIX: (x) hire
any person who was employed by NYFIX at any time during the last
six months of the Employment Period; (y) directly or indirectly
induce or attempt to induce, solicit or encourage any person to
leave the employ of NYFIX; or (z) advise or counsel any person,
other than NYFIX, with respect to the identity or skill set of
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anyone who was employed by NYFIX at any time during the last six
months of the Employment Period.
10. NON-DISCLOSURE OF INFORMATION.
(a) Executive acknowledges that NYFIX's trade secrets, NYFIX's specific
combination of use of third-party parts, proprietary technology and
software, and other Confidential Information as may be shared with
Executive are valuable and unique assets of NYFIX. NYFIX and Executive
recognize that access to and knowledge of NYFIX's Confidential
Information is essential to Executive's duties as a NYFIX Executive.
(b) In return for access to and knowledge of NYFIX's Confidential
Information, Executive agrees that he or she will not, during the
Employment Period or at any time thereafter, except as agreed to in a
prior writing signed by an authorized representative of NYFIX, Inc.:
(i) disclose any such Confidential Information to any person, firm,
corporation, or other entity for any reason or purpose whatsoever;
(ii) copy any NYFYX Confidential Information, except as reasonably
required to perform Executive's duties for NYFIX; or (iii) make use of
any such Confidential Information for Executive's own purposes or for
the benefit of any person, firm, corporation, or other entity, other
than NYFIX, under any circumstances during or after the Employment
Period.
(c) On written request made by NYFIX, Executive agrees to promptly return
or destroy (at NYFIX's option) all originals and copies of any NYFIX
Confidential Information and shall confirm in writing that this has
been done and that no other Confidential Information or copies thereof
exist under Executive's control.
(d) The term "Confidential Information" shall mean trade secrets,
confidential knowledge, nonpublic data and any other proprietary
information of the Company. By way of illustration but not limitation,
"Confidential Information" includes (i) inventions, trade secrets,
ideas, processes, formulas, data, programs, other works of authorship,
know-how, improvements, discoveries, developments, designs and
techniques, in each case, to the extent such items relate to
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communications and/or business transactions with one or more users
over a computer network or the Internet; and (ii) information
regarding plans for research, development, new products and services,
marketing and selling, business plans, budgets and unpublished
financial statements, licenses, prices and costs, suppliers and
customers; and information regarding the skills and compensation of
any other Executive of the Company.
11. THE COMPANY'S RIGHT TO INVENTIONS.
(a) Executive shall promptly disclose, grant and assign to the Company for
its sole use and benefit any and all inventions, improvements,
technical information, methods and suggestions ("Company Inventions"),
and all patent rights, copyrights, trade secret rights and all other
rights throughout the world (collectively, "Proprietary Rights")
related to Company Inventions, whether or not such Company Inventions
are patentable or registrable under copyright or similar statutes,
made, conceived, reduced to practice or learned by Executive, either
alone or jointly with others, which Executive may acquire or develop
(whether or not during usual working hours) during the Employment
Period, together with all patent applications, patents, copyrights and
reissues thereof that may at any time be granted for or upon any such
Company Inventions. Executive acknowledges that all original works of
authorship which are made by Executive (solely or jointly with others)
within the scope of his or her employment and which are protectable by
copyright are "works made for hire," as that term is defined in the
United States Copyright Act (17 U.S.C., Section 101).
(b) In connection with the Company Inventions:
(i) Executive shall without charge, but at the expense of the
Company, promptly execute and deliver such applications,
assignments and other instruments as may be reasonably necessary
or proper to vest title to any Company Inventions and related
Proprietary Rights in the Company and to enable it to obtain and
maintain the entire right and title thereto throughout the world;
and
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(ii) Executive shall provide to the Company at its expense (including
a reasonable payment for the time involved if Executive is not
then an Executive) all reasonable assistance to prosecute its
Proprietary Rights, or to prosecute or defend any litigation or
other matter relating to such Proprietary Rights or Company
Inventions.
(c) Executive will assist the Company in obtaining and enforcing United
States and foreign Proprietary Rights relating to Company Inventions
in any and all countries. To that end Executive will execute, verify
and deliver such documents and perform such other acts (including
appearances as a witness) as the Company may reasonably request for
applying for, obtaining, sustaining and enforcing such Proprietary
Rights and the assignment thereof. In addition, Executive will
execute, verify and deliver assignments of such Proprietary Rights to
the Company or its designee. Executive will assist the Company with
respect to Proprietary Rights relating to such Company Inventions in
any and all countries during and after the Employment Period, and t
the Company shall compensate Executive at a reasonable rate for time
actually spent by Executive after the Employment Period providing such
assistance.
(d) If the Company is unable to obtain Executive's signature on any
document related to Company Inventions or Proprietary Rights,
Executive hereby designates the Company and its duly authorized agents
as Executive's attorney in fact, to execute, verify and file for
Executive any such documents and to do all other acts related to
Company Inventions or Proprietary Rights with the same legal effect as
if executed or done by Executive. This power of attorney shall be
deemed coupled with an interest and shall be irrevocable. Executive
hereby waives and quitclaims to the Company any and all claims, of any
nature whatsoever, which Executive now has or may hereafter have for
infringement of any Proprietary Rights assigned hereunder to the
Company.
12. OBLIGATION TO KEEP COMPANY INFORMED.
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During the Employment Period and for a period of one (1) year thereafter,
Executive will promptly disclose to the Company fully and in writing and will
hold in trust for the sole benefit of the Company any and all Company
Inventions. In addition, Executive will promptly disclose to the Company all
patent applications filed by him or her within one (1) year after the Employment
Period that relate to Executive's employment with the Company.
13. PRIOR INVENTIONS.
Any Inventions that Executive made before the Employment Period are
excluded from this Agreement. To avoid uncertainty, Executive lists in Exhibit A
all Inventions that Executive has, alone or with others, made before the
Employment Period, that Executive considers to be his or her property or the
property of third parties and that Executive wishes to have excluded from this
Agreement. If disclosure of an invention on Exhibit A would cause Executive to
violate any prior confidentiality agreement, Executive understands that he or
she is not to list that invention in Exhibit A but is to inform the Company that
Executive has not listed all inventions for that reason.
14. NO IMPROPER USE OF MATERIALS.
During the Employment Period, Executive will not improperly use or disclose
any confidential information or trade secrets, if any, of any former employer or
other person to whom Executive has an obligation of confidentiality, and
Executive will not bring onto the premises of the Company any unpublished
documents or any property belonging to any former employer or other person to
whom Executive has an obligation of confidentiality unless consented to in
writing by that former employer or person.
15. NO CONFLICTING OBLIGATION.
Executive represents that his or her performance under this Agreement and
as a Company Executive does not and will not breach any confidentiality
agreement covering information that Executive acquired before the Employment
Period. Executive has not entered into and will not enter into any oral or
written agreement in conflict herewith.
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16. RETURN OF COMPANY DOCUMENTS.
When Executive leaves the employ of the Company, Executive will deliver to
the Company all materials, including copies, acquired during the Employment
Period pertaining to the Company or its business, whether or not such materials
contain or disclose Confidential Information.
17. LEGAL AND EQUITABLE REMEDIES.
Because Executive's services are personal and unique and because Executive
may have access to and become acquainted with Company Confidential Information,
the Company shall have the right to enforce the provisions of this Agreement by
injunction or other equitable relief, without bond and without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement, which Executive acknowledges will result in irreparable harm to the
Company.
18. INDEMNIFICATION.
EXECUTIVE INDEMNIFIES THE COMPANY AGAINST ALL REASONABLE LOSSES,
LIABILITIES, COSTS (INCLUDING LEGAL COSTS) AND EXPENSES THAT THE COMPANY MAY
INCUR AS A RESULT OF ANY MATERIAL BREACH (INCLUDING A BREACH ARISING AS A RESULT
OF NEGLIGENCE) OF EXECUTIVE'S OBLIGATIONS UNDER THIS AGREEMENT.
19. TERMINATION.
(a) This Agreement may be terminated by either party at any time upon
thirty (30) days written notice.
(b) Notwithstanding Section 19(a), Executive acknowledges that he or she is
responsible for any disclosure or use of Confidential Information
that results from Executive's failure to comply with the provisions of
Section 10 and that such failure to comply is grounds for disciplining
Executive up to and including immediate termination of Executive's
employment with the Company without prior notice.
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20. NOTICES.
Any notices under this Agreement shall be given at the address specified
below or at such other address as the party shall specify in writing. Such
notice shall be deemed given upon personal delivery or, if sent by certified or
registered mail, three days after the date of mailing.
21. REPRESENTATIONS.
Executive hereby represents and warrants that there is no action,
proceeding or investigation pending or, to Executive's knowledge, threatened
against him or her and Executive has not been convicted of, pleaded nolo
contendere to, or had an order issued or consent decree entered into in respect
of, a charge of violating securities laws or any felony.
22. GENERAL PROVISIONS.
22.1 GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE INTERNAL
SUBSTANTIVE LAWS, AND NOT THE LAWS OF CONFLICTS, OF THE STATE OF NEW YORK.
22.2 VENUE.
Except as set forth in the Agreement to Arbitrate Claims, dated December
17, 2004, between Executive and NYFIX (the "Arbitration Agreement"), Executive
and NYFIX agree that the exclusive forum for the resolution of any and all
disputes or controversies that may arise between them relating to this Agreement
shall be the courts of the State of New York or of the United States of America
located in New York County, New York, and by execution and delivery of this
Agreement, Executive and NYFIX each hereby accepts, generally and
unconditionally, the exclusive jurisdiction of those courts. Executive and NYFIX
each hereby irrevocably waives, in connection with any such action or
proceeding, any objection, including, without limitation, any objection to the
laying of venue or based on the grounds of forum non convenience, which it may
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now or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
22.3 ENTIRE AGREEMENT.
This Agreement and the Arbitration Agreement set forth the entire agreement
and understanding between the Company and Executive relating to the subject
matter
hereof and supersede and merge all prior oral and written agreements and
discussions between the parties relating to that subject matter. No modification
of or amendment to this Agreement, nor any waiver of any rights under this
Agreement, will be effective unless in writing signed by the party to be
charged. Any subsequent change or changes in Executive's duties, salary or
compensation will not affect the validity or scope of this Agreement. If there
is a conflict between this agreement and the Arbitration Agreement, the
Arbitration Agreement governs and controls.
22.4 CONSULTANCY.
As used in this Agreement, the term "Employment Period" is as defined in
Section 3 of this Agreement.
22.5 ENFORCEMENT; SEVERABILITY.
It is the desire and the intent of the parties hereto that the provisions
of this Agreement be enforced to the fullest extent permissible under the laws
and public policy of the jurisdictions in which enforcement is sought.
Accordingly, if any particular portion or provision of this Agreement shall be
adjudicated to be invalid or unenforceable, the remaining portion or such
provision or the remaining provisions of this Agreement, or the application of
such provision or portion of such provision as is held invalid or unenforceable
to persons or circumstances other than those to which it is held invalid or
unenforceable, shall not be effected thereby.
22.6 SUCCESSORS AND ASSIGNS.
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This Agreement will be binding upon Executive's heirs, executors,
administrators and other legal representatives and will be for the benefit of
the Company, its successors and its assigns; PROVIDED, that the Company and any
such successor or assign shall provide prompt notice to Executive of any
assignment of this Agreement.
22.7 SURVIVAL.
The provisions of this Agreement shall survive the assignment of this Agreement
by the Company to any successor in interest or other assignee. The provisions of
this Agreement, which by their nature and context, are intended to survive any
termination of Executive's employment with the Company shall so survive such
termination. Without limiting the foregoing, surviving provisions shall include
those set forth in Sections 9-13, 16-18, 20 and 22 of this Agreement.
22.8 WAIVER.
No waiver by the Company of any breach of this Agreement shall be a waiver
of any preceding or succeeding breach. No waiver by the Company of any right
under this Agreement shall be construed as a waiver of any other right. The
Company shall not be required to give notice to enforce strict adherence to all
terms of this Agreement.
22.9 NO UNANNOUNCED MODIFICATIONS TO SIGNATURE DOCUMENTS.
By signing and delivering this Agreement and/or any schedule, exhibit,
amendment, or addendum thereto, each party will be deemed to represent to the
other that the signing party has not made any changes to such document from the
draft(s) originally provided to the other party by the signing party, or vice
versa, unless the signing party has expressly called such changes to the other
party's attention in writing (e.g., by "redlining" the document or by a comment
memo or email).
EXECUTIVE UNDERSTANDS THAT THIS AGREEMENT AFFECTS HIS OR HER RIGHTS TO
INVENTIONS EXECUTIVE MAKES DURING EMPLOYMENT WITH THE COMPANY, AND RESTRICTS
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EXECUTIVE'S RIGHTS TO DISCLOSE OR USE THE COMPANY'S CONFIDENTIAL INFORMATION AND
TO COMPETE IN BUSINESS WITH THE COMPANY, DURING AND AFTER SUCH EMPLOYMENT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTIVE HAS CAREFULLY READ THIS EMPLOYMENT AGREEMENT AND UNDERSTANDS
ITS TERMS. EXECUTIVE HAS COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated: 1/3/05
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Signature
/s/ Xxx Xxxxxxx
----------------------------
Xxx Xxxxxxx
00 Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Dated: 1/3/05
--------------
NYFIX, Inc.
By: /s/ Xxxxx Xxxxxxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxxxxx Xxxxxx
Chief Executive Officer
EXHIBIT A
To: NYFIX, Inc.:
1. The following is a complete list of all inventions or improvements
relevant to the subject matter of my employment by NYFIX, Inc. or any of its
subsidiaries or affiliates (collectively, the "Company") that have been made or
conceived or first reduced to practice by me alone or jointly with others prior
to my employment by the Company that I desire to remove from the operation of
the Employment Agreement to which this Exhibit A is attached.
No inventions or improvements.
---
See below:
---
Additional sheets attached.
---
2. I propose to bring to my employment the following materials and
documents of a former employer:
No materials or documents.
---
See below:
---
Additional sheets attached.
---
Signature:
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Xxx Xxxxxxx
