Amendment No. 2 To January 1, 2005 Executive Agreement
Exhibit
10.2
Amendment
No. 2 To
January
1, 2005 Executive Agreement
This
second amendment (the “Amendment”) to the January 1, 2005 Executive Agreement
(the “Agreement”) is executed effective as of August 1, 2006 by and between
NYFIX, INC. a Delaware corporation with its principal office at 000 Xxxx
Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, and Xxx Xxxxxxx, residing at [Home Address omitted],
New York (hereinafter “Executive”).
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1.
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Section
2 is deleted in its entirety and replaced with the
following:
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“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
the Chief Executive Officer of the Company; provided that, effective as of
January 2006, Executive agrees to serve as Executive Vice President -
Administration and, effective as of August 1, 2006, to no longer serve as
an
executive officer and to report to the Chief Financial Officer.”
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2.
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Section
3 is deleted in its entirety and replaced with the
following:
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“3. Term
of Employment.
The
period of Executive's employment under this Agreement shall be deemed to
have
commenced as of January 1, 2005 and shall continue through, and including
the
earliest to occur of:
a. January
2, 2007, unless extended by mutual agreement of the Company and the Executive
to
a date certain not to exceed six months (the “Section 3a Expiration
Date”);
b. the
date
on which Executive dies; and
c. the
date
on which either the Company or Executive terminates Executive's employment
for
any reason (the "Termination Date”).
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3.
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Section
18 is renumbered Section 18(a) and a new Section 18(b) is added
as
follows:
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The
Company agrees, after notification and request by executive, to indemnify
and
hold harmless executive to the fullest extent permitted by applicable law
against all expenses and/or losses (which the Company will advance, in
accordance with applicable law) relating to, resulting from or arising out
of
any threatened, pending or completed
action,
suit, claim or proceeding related to executive’s employment with the Company. In
addition, to the extent the Company maintains liability insurance, executive
will have continued coverage on and after July 31, 2006 to the extent coverage
applies to employees who are not directors or officers. The Company agrees
to
require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of
the
business or assets of the Company (a “Successor”), by agreement in form and
substance satisfactory to executive, expressly to assume and agree to perform
the Company’s obligations under this Section 18(b) in the same manner and to the
same extent the Company would be required to perform if no such succession
had
taken place.
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4.
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Section
19 is deleted in its entirety and replaced with the
following:
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“19. Termination.
a. This
Agreement may be terminated by the Company for any reason upon ten (10) days’
prior written notice.
b. The
Company shall have Cause for termination where one or more of the following
exists:
i. a
material breach by the Executive of any of the terms of this
Agreement;
ii. Executive
is engaging or has engaged in conduct materially injurious to the Company,
its
subsidiaries, its affiliates, customers or suppliers; and
iii. Executive
is engaging or has engaged in any act which would constitute a felony under
federal or state law.
c. The
Executive shall have Good Reason for terminating his employment with the
Company
under this Agreement if one or more of the following occurs:
i. layoff
or
involuntary termination of the Executive's employment, except in connection
with
the termination of the Executive's employment as a result of termination
for
Cause, or of the Executive's mental or physical disability (“Disability”) or
death;
ii. material
breach of Company's obligations hereunder, provided that Executive shall
have
given reasonably specific written notice thereof to Company, and Company
shall
have
failed
to
remedy the circumstances within ten (10) business days thereafter;
or
iii. any
decrease in Executive's salary as it may have increased during the term of
this
Agreement, except for decreases that are in conjunction with decreases in
executive salaries by the Company generally.
d. Notwithstanding
the foregoing, no action by the Company shall give rise to a Good Reason
if it
results from the Executive's termination for Cause or from Executive’s Death,
and no action by the Company specified in paragraphs (c)((i) through(iii)
of
this section shall give rise to a Good Reason if it results from the Executive's
Disability.
x. Xxxxxxxxx.
Where the Company terminates Executive’s employment for Cause, Executive shall
not receive any payment, other than earned and unpaid base salary, vacation
and
bonuses to the date of termination and shall not receive any medical or dental
benefits payable by the Company. Where prior to the Section 3a Expiration
Date
the Company terminates Executive’s employment other than for Cause or Executive
terminates his employment with Good Reason, Executive shall receive, in addition
to his earned and unpaid base salary, vacation and bonuses to the date of
termination: (i) Base Salary by salary continuation from the date of termination
to the Section 3a Expiration Date; and (ii) three months of Base Salary by
salary continuation from the Section 3a Expiration Date to the last day of
the
third month thereafter. The
timing for any payment provided for in this paragraph shall be subject to
the
provisions of Section 23 of this Agreement if the Executive is a “specified
employee”. Where
termination of Executive’s employment is caused by his Death or Disability,
Executive shall not receive any payment, other than earned and unpaid base
salary, vacation and bonuses to the date of termination and shall not receive
any medical or dental benefits payable by the Company. Where the Executive’s
employment terminates as a result of the expiration of this Agreement by
its
terms on the Section 3a Expiration Date, Executive shall receive, in addition
to
his earned and unpaid base salary, vacation and bonuses to the date of
termination, three months of Base Salary by salary continuation commencing
as of
the Section 3a Expiration Date. Where (x) prior to the Section 3a Expiration
Date, the Company terminates Executive’s employment other than for Cause or
Executive terminates his employment for Good Reason, or (y) Executive’s
employment terminates as a result of the Agreement expiring by its terms
on the
Section 3a Expiration Date, Executive shall also receive continuation of
medical
and dental benefits for up to three months after the Section 3a Expiration
Date
(plus the period from termination through the Section 3a Expiration Date
where
prior to such Section 3a Expiration Date the Company terminates Executive’s
employment other than for Cause or Executive terminates his employment with
Good
Reason),
payable by the Company, provided that the Executive is not eligible for
insurance in connection with his next employer. The
timing for any payment provided for in this paragraph shall be subject to
the
provisions of Section 23 of this Agreement if the Executive is a “specified
employee”.
f. Executive
must provide a Notice of Termination to the Company that he is intending
to
terminate his employment prior to the Section 3a Expiration Date, for Good
Reason, within thirty (30) days after Executive has actual knowledge of the
occurrence of the latest event he believes constitutes Good Reason, which
termination notice shall specify a Termination Date within thirty (30) days
after the date of such notice. Executive's right to terminate Executive's
employment hereunder for Good Reason shall not be affected by Executive's
subsequent Disability provided that the notice of intention to terminate is
given prior to the onset of such Disability. Subject to compliance by Executive
with the notice provisions of this Section 10, Executive's continued employment
prior to terminating employment for Good Reason shall not constitute consent
to,
or a waiver of rights with respect to, any act or failure to act constituting
Good Reason. In the event Executive delivers to the Company a Notice of
Termination for Good Reason, upon request of the Board, Executive agrees
to
appear before a meeting of the Board called and held for such purpose (after
reasonable notice) and specify to the Board the particulars as to why Executive
believes adequate grounds for termination for Good Reason exist. No action
by
the Board, other than the remedy of the circumstances within the time periods
specified in this Section 10, shall be binding on Executive.
g. Termination
by Executive without Good Reason prior to the Section 3a Expiration Date.
In the
event Executive's employment is voluntarily terminated by Executive without
Good
Reason (and Executive may terminate this Agreement without Good Reason upon
thirty (30) days prior notice), Company shall not be obligated to make any
payments, other than earned and unpaid Base Salary, vacation and bonuses
to the
date of termination, to or on behalf of Executive hereunder.
h. Simultaneously
with receipt of severance payment described in 19(e), Executive will execute
a
release in a form satisfactory to the Company and the Executive.”
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5.
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A
new Section 23 is added as follows:
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“23. Section
409A Requirements
This
Agreement is intended to satisfy in form and operation the requirements of
the
terms of Section 409A of the Code to the extent applicable and any applicable
guidance or regulations, including transition
rules,
thereunder (collectively, “Section 409(A)”). To the extent required by Section
409A, and notwithstanding any other provision of this Agreement, no payment
or
benefit that constitutes deferred compensation for purposes of Section 409A
will
be provided to the Executive following his separation from service prior
to the
first to occur of (i) the date of the Executive’s death or (ii) the first day of
the seventh month following the month in which his separation from service
occurs, if he is a “specified employee” (as defined under Section
409A(a)(2)(B)(i) of the Code). Any payment that is delayed pursuant to the
provisions of the immediately preceding sentence shall instead be paid in
a lump
sum promptly following the first to occur of the two dates specified in the
immediately preceding sentence. Without limiting the generality of the
foregoing, the payments provided for in Section 20 (a)(i) shall be delayed
as
provided for in this Section 23 if the Executive is a “specified employee”.
Furthermore and notwithstanding any other provision of this Agreement to
the
contrary, this Agreement is deemed to be modified in any way necessary to
satisfy the requirements of Section 409A as determined by the Company in
its
good faith discretion.”
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6.
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A
new section 24 is added as follows:
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24.
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Applicability
of February 23, 2006 Agreement Until Effectiveness of Second
Amendment
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The
parties agree that the terms and conditions of the current Agreement, dated
February 23, 2006, apply to the period from July 1, 2006 to July 31,
2006.
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7.
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All
other provisions of the Agreement remain in full force and
effect.
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NYFIX,
INC.
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EXECUTIVE
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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/s/
Xxx Xxxxxxx
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Authorized
Signature
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Xxx
Xxxxxxx
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| Xxxxxx X. Xxxxxxxxx |
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Its:
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Chief
Financial Officer
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