December 31, 2008 PERSONAL & CONFIDENTIAL
Exhibit
10.18
December
31, 2008
PERSONAL
& CONFIDENTIAL
C. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
[Home
address redacted]
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Re:
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Employment
Agreement dated January 4, 2008 between you and NYFIX,
Inc.
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(the
“Agreement”).
Dear
▇▇▇:
You and
NYFIX, Inc. agree to the following amendments to the Agreement.
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1.
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The
sixth sentence of the last full paragraph (such paragraph beginning with
the words “While we certainly hope”) beginning on Page 4 of your agreement
(such sentence beginning with the words “Notwithstanding the above, in the
event you terminate your employment for ‘Good Reason’”) is amended as
follows:
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a.
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The
words “provided you sign a Release containing generally the release
language attached as Attachment E to this Agreement (the “Release”)” are
deleted;
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b.
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The
words ” , subject to Attachment C,” are inserted prior to the words “(i)
twelve (12) months’ Base Salary”;
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c.
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Subparagraph
(i) of such sentence is amended by adding the words “and commencing 30
days following the termination of employment” prior to the
semicolon;
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d.
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Subparagraph
(ii) of such sentence is amended by adding the words “payable in a lump
sum within 30 days of your termination” prior to the
semicolon;
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e.
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The
words “but not later than March 15 of the applicable following year”
appearing at the end of such sentence are deleted and replaced by the
words “but not later than March 15 of the year following
termination.”
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2.
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The
seventh sentence of the last full paragraph beginning on Page 4 of your
agreement (such sentence beginning with the words “Alternatively, in the
event you terminate your employment for Good Reason”) is amended as
follows:
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Page 1 of
5
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a.
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The
words “payable in accordance with the Company’s normal payroll practices
and commencing 30 days following termination of your employment,” are
inserted before the words “less required
withholdings”;
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b.
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The
words “provided you execute a Release containing generally the release
language attached as Attachment E to this Agreement” appearing after the
words “less required withholdings” are
deleted.
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3.
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A
new (eighth) sentence is inserted after the seventh sentence of such
paragraph, to read in full as
follows:
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“Your
severance payments and benefits provided above shall be made or shall commence
according to the terms of this Agreement on the 30th day
after your termination, provided that you execute a release containing the
general release language attached as Attachment E to this Agreement (the
“Release”), and that Release has become binding and any applicable revocation
period has lapsed as of such date.”
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4.
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A
new (tenth) sentence is inserted at the end of such paragraph, to read in
full as follows:
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“The
distribution of the payments and benefits you receive upon your termination of
employment with the Company shall be subject to the terms and conditions set
forth in Attachment C.”
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5.
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Attachment
C is amended to read in its entirety as set forth in the attachment
hereto.
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If you
are in agreement with the foregoing, kindly execute a copy of this letter and
return it to the undersigned.
Page 2 of
5
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NYFIX,
Inc.
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Very
truly yours,
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Chief
Financial Officer
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Accepted
and Agreed:
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/s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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C.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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December 31, 2008
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Page 3 of
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Attachment
C
Payments Subject to Section
409A
The
parties mutually agree to cooperate on the application of 409A to the
agreement. Subject to the provisions in this Attachment C, severance
payments or benefits under this offer letter shall begin only upon the date of
your “separation from service” (determined as set forth below) which occurs on
or after the date of termination of employment. The following rules
shall apply with respect to distribution of the payments and benefits, if any,
to be provided to you under this offer letter:
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(a)
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It
is intended that each installment of the severance payments and benefits
provided under this offer letter shall be treated as a separate “payment”
for purposes of Section 409A of the Internal Revenue Code and the guidance
issued thereunder (“Section 409A”). Neither you nor the Company
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.
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(b)
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If,
as of the date of your “separation from service” from the Company, you are
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 offer
letter.
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(c)
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If,
as of the date of your “separation from service” from the
Company, you are 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 offer
letter 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 under
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 offer
letter that is not described in paragraph (i) above and that would, absent
this subsection, be paid within the six-month period following your
“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, your 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 your
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 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 your second taxable year following the taxable year in
which the separation from service
occurs.
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Page 4 of
5
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(d)
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The
determination of whether and when your separation from service from the
Company has occurred shall be made and 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 paragraph (d),
“Company” shall include all persons with whom the Company would be
considered a single employer as determined under Treasury Regulation
Section 1.409A-(h)(3).
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(e)
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All
reimbursements and in-kind benefits provided under this offer letter 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 requirement that (i) any
reimbursement is for expenses incurred during your lifetime (or during a
shorter period of time specified in this offer letter), (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.
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(f)
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The
Company may withhold (or cause to be withheld) from any payments made
under this offer letter, all federal, state, city or other taxes as shall
be required to be withheld pursuant to any law or governmental regulation
or ruling.
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Page 5 of
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