Amendment No. 1 To January 1, 2005 Executive Agreement
Exhibit
10.1
Amendment
No. 1 To
January
1, 2005 Executive Agreement
This
first amendment (the “Amendment”) to the January 1, 2005 Executive Agreement
(the “Agreement”) is executed effective as of February 23, 2006 by and between
NYFIX, INC. a Delaware corporation with its principal office at 000 Xxxxxx
Xxxxxx, Xxxxxxxx, XX 00000, and Xxx Xxxxxxx, residing at [Home Address omitted]
(hereinafter “Executive”).
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1.
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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. June
30,
2006;
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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2.
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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:
First
Amendment to January 1, 2005
Executive
Agreement
1
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.
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d.
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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.
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x.
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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 June 30,
2006 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 June 30, 2006; and (ii) three months
of
Base Salary by salary continuation from July 1, 2006 through September
30,
2006. 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 June 30, 2006, 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 through September 30, 2006. Where (i) prior
to June
30, 2006, the Company terminates Executive’s employment other than for
Cause or Executive terminates his employment for Good Reason, or
(ii)
Executive’s employment terminates as a result of the Agreement expiring by
its terms on June 30, 2006; Executive shall also receive continuation
of
medical and dental benefits for up to three months after June 30,
2006 (
plus the period from termination through June 30, 2006 where prior
to June
30, 2006 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
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First
Amendment to January 1, 2005
Executive
Agreement
2
connection
with his next employer.
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f.
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Executive
must provide a Notice of Termination to the Company that he is
intending
to terminate his employment prior to June 30, 2006, 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.
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g.
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Termination
by Executive without Good Reason prior to June 30, 2006. 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.
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h.
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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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3.
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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/
Xxxxx Xxxxxxxx
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/s/
Xxx Xxxxxxx
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Authorized
Signature
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Xxx
Xxxxxxx
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Xxxxx
Xxxxxxxx
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[Print
Name]
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Its:
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Secretary
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First
Amendment to January 1, 2005
Executive
Agreement
3
