December 29, 2008 PERSONAL & CONFIDENTIAL Robert Moitoso [Home Address Redacted] Dear Bob: Reference is made to the Employment Agreement dated January 3, 2007 between you and NYFIX, Inc., (the “Agreement”).
Exhibit 10.25
December
29, 2008
PERSONAL &
CONFIDENTIAL
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[Home
Address Redacted]
Dear
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Reference
is made to the Employment Agreement dated January 3, 2007 between you and NYFIX,
Inc., (the “Agreement”).
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1.
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You
and NYFIX, Inc. hereby agree to add the following sentence at the end of
the second full paragraph on page one of the
Agreement:
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“, which
will be paid in a lump sum no later than March 15 of the year after the year in
which the bonus was achieved.”
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2.
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You
and NYFIX, Inc. hereby agree that the last sentence of the first full
paragraph of page three of the Agreement is replaced, in its entirety,
with the following two sentences:
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“Notwithstanding
the above, in the event you are terminated without Cause, subject to the
provisions of Attachment A, you will receive twelve (12) months’ base pay at
your then-current rate, less required withholdings, commencing thirty (30) days
after the date of termination, payable in accordance with NYFIX’s normal payroll
practices, provided that within 30 days of your termination you have executed,
and any applicable revocation period has expired with respect to, a release
document in form and substance acceptable to NYFIX in its sole
discretion. All severance payments hereunder are subject to the
provisions of Attachment B.”
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3.
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You
and NYFIX, Inc. hereby agree to add Attachment B, “Payments Subject to
Section 409A,” to read as set forth in the attachment
hereto.
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— The
remainder of this page is intentionally left blank —
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NYFIX,
Inc.
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Very
truly yours,
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Chief
Financial Officer
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Accepted
and Agreed:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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December 30, 2008
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Attachment
B
Payments Subject to Section
409A
Subject
to the provisions in this Attachment A, 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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(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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