Exhibit 10.27
AGREEMENT
Agreement dated July 17, 2001, between XXXXXXX X. XXXXXXX, of 0000 X.
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Catania") and BOARD OF TRADE OF THE CITY OF
CHICAGO, a Delaware corporation, with its principal office at 000 X. Xxxxxxx
Xxxx., Xxxxxxx, XX 00000 ("the Company").
WHEREAS, Catania is currently serving as Executive Vice President, Market
and Product Development, of the Company pursuant to election by the Company's
Board of Directors (the "Board") and under the provisions of an Executive
Employment Agreement dated May 18, 1999 and amended as of February 28, 2001
(which Executive Employment Agreement and the amendment thereto are hereafter
called the "Amended Executive Employment Agreement");
WHEREAS, pursuant to the terms of the Amended Executive Employment
Agreement, Catania's term of employment will expire no earlier than July 18,
2002;
WHEREAS, the Board wishes to restructure certain managerial positions;
WHEREAS, the Company and Catania desire that the Company be given the
maximum flexibility in pursuing this restructuring; and
WHEREAS, toward the achievement of this end, Catania and the Company have
reached agreement on the terms on which the Amended Executive Employment
Agreement would be terminated, Catania would resign as an officer of the
Company, and he would be offered the opportunity to agree to perform certain
services on an as-needed basis in return for the opportunity for certain early
retirement benefits from the Company on terms further
outlined in the present Agreement;
NOW, THEREFORE, in consideration of the agreements and covenants contained
herein, Catania and the Company agree as follows:
ARTICLE I
Resignation of Catania as Vice President,
Marketing and Development
Section 1.1. Termination of Amended Executive Employment Agreement. The
Amended Executive Employment Agreement, a copy of which is attached as
Exhibit A, is hereby terminated and replaced by this Agreement.
Section 1.2. Resignation of Catania as Officer of the Company. Immediately
upon ratification of this Agreement by the Board or its duly authorized
representative, Catania shall submit his resignation as an officer of the
Company and of any of its subsidiaries or affiliates. The letter shall be
submitted in the form attached as Exhibit B to this Agreement.
Section 1.3. Duties and Responsibilities.
(a) Following his resignation as an officer of the Company, Catania will
continue as an employee of the Company until June 6, 2003, and thereafter on a
month-to-month basis until terminated by either Catania or the Company.
(b) Catania shall perform services for the Company relating to matters
within the purview of Catania's prior employment with the Company on an as-
needed basis, with times and conditions to be as mutually agreed by Catania and
the Company.
(c) Catania shall have no authority to bind or speak for the Company.
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(d) Catania shall be classified as a regular full-time employee but shall
have the right to take one or more paid leaves of absence during such periods as
he is not performing services pursuant to (b) above, provided that no single
leave of absence shall be of more than 6 months' duration.
Section 1.4. Early Retirement. The Company intends to offer Catania the
right to early retirement in accordance with an early retirement incentive
program under the Company's Qualified Pension Plan. Under such program, Catania
shall be eligible for all insurance coverages made available to other retirees
under the Company's group health plan. In the event that the Company should
henceforth amend the provisions of its group health plan to eliminate retiree
coverage, or shall be unable to offer Catania the right to participate in the
Company's group health plan as a retiree, Catania shall retain the option of
requiring that the Company provide him and his immediate family with medical and
dental coverage pursuant to the terms that would have been available to him if
he had retired prior to such elimination, with the cost to be paid by Catania as
set forth in section 2.06 of the Amended Executive Employment Agreement;
provided, that the obligation of the Company to provide continuing coverage
outside the Company's group health plan shall terminate in the event that
substantially equivalent coverage at no materially greater cost is made
available to Catania through a subsequent employer.
Section 1.5. Right to engage in other business or employment. The Exchange
expressly understands and agrees that Catania may seek and secure additional
outside employment at any time following the execution of this Agreement, and
such employment will in no way affect any rights or entitlements to Catania
under this Agreement, provided; however,
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Catania hereby agrees that all information, whether written or oral, relating to
the Company or received by the Company from a third party pursuant to
confidentiality restrictions, which was provided to Catania or to which Catania
became aware of while employed at the Company shall be considered proprietary
and confidential information of the Company ("Confidential Information").
For purposes of this Agreement, Confidential Information shall include, but
not be limited to, any and all trade secrets and information regarding Company
products, customers, members, member firms, employees, business plans, finances,
and technological developments and programs. Confidential Information shall not
include information which: a) was known to Catania outside the terms of his
employment at the Company; b) is publicly known; c) has been disclosed to
Catania by a third party without a breach of any obligation of confidentiality;
or d) is disclosed pursuant to court order, duly authorized subpoena or
government authority.
Section 1.6. Announcement of Resignation as Officer. On the day Catania
submits his resignation as an officer of the Company pursuant to this article,
the Board shall issue the press release attached hereto as Exhibit C. Any
comment by the Company or its Board or by Catania to the news media about this
resignation shall be consistent with Exhibit C and with the nondisparagement
provisions in this Agreement.
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Article II
Monetary Payments and Other Benefits
During Leaves of Absence
Section 2.1. Salary. Until June 6, 2003, Catania shall continue to receive
his salary at the rate specified in Section 2.01 of the Amended Executive
Employment Agreement. After June 6, 2003, until his retirement Catania shall
receive such compensation as may be mutually agreed by Catania and the Company.
Section 2.2. Certain insurance benefits for Catania. Until June 6, 2003, or
until the death of Catania, whichever occurs first, or until such later date
hereinafter set forth with respect to specified benefits, the Company shall
provide the following insurance benefits for Catania in the same amounts and on
the same terms as are available to other senior executives:
(i) Health and dental insurance for Catania and his dependents, under the
Company's Health Plan and Dental Plan, until Catania's termination of employment
or retirement;
(ii) Continued participation in the "Execu-Care" Medical Reimbursement and
Accidental Death; & Dismemberment programs in which Catania has participated as
Executive Vice President, Market and Product Development of the Company;
(iii) Long-term disability insurance coverage;
(iv) Continued insurance coverage on Catania's life in such amount as the
insurance that is currently provided to Catania by virtue of his employment at
the Company, whether through whole-life or term life policies (excluding any
insurance Catania's life as to which the beneficiary is the Company rather than
a beneficiary named by Catania);
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(v) Continued accidental death and dismemberment insurance of Catania in
such amounts and on such terms as are currently provided to Catania by virtue of
his employment at the Company.
The insurance coverage required by this subsection 2.2 may be provided to
Catania through continued coverage of Catania through the Company's existing
plans, through purchase by the Company of new policies providing such coverage
to Catania, or by any other mutually agreeable method of providing such
coverage. As between Catania and the Company, the cost of providing such
coverage shall continue to be borne in the same manner for each coverage as it
is borne for other senior executives.
(vi) In the event of Catania's death prior to the date he takes early
retirement pursuant to the provisions of section 1.4 of this Agreement, the
Company will provide medical and dental coverage to Catania's immediate family
on the same terms that are offered to retirees at such time, but with payment of
the cost of such coverage to be paid in accordance with section 2.06 of the
Amended Executive Employment Agreement; provided, that the obligation of the
Company to provide medical and dental coverage (other than as may be required
under COBRA) shall terminate in the event that substantially equivalent coverage
at no materially greater cost is made available to Catania's family through
another employer, remarriage of Catania's wife or otherwise.
Section 2.3. Retirement benefits. The parties understand that Catania will
continue participating as a "covered employee" in the Company's Qualified
Savings Plan, Non-Qualified Savings Plan, Qualified Pension Plan, and Non-
Qualified Pension Plan so long as he continues as an employee of the Company.
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(a) Credited service upon early retirement. The Company intends to offer
Catania early retirement to be effective as of June 6, 2003. Under the
anticipated early retirement program, the Company, in calculating his pension
(or his lump-sum distribution in lieu of pension) under the Qualified Pension
Plan, shall include in Catania's period of credited service all service through
December 11, 2004. If the terms of the Qualified Pension Plan are not amended to
permit including such time in the period of credited service through an early
retirement incentive program, the Company shall make a separate payment to
Catania calculated under proper actuarial principles to compensate him for the
difference in the amount of his pension under the Qualified Pension Plan
(calculated, in the event of his death, as if his date of death were a date of
termination of employment) and what that pension would have been had Catania
been credited with service through December 11, 2004, with benefits based on the
high 60-month compensation for periods of service ending on or prior to June 6,
2003. In such case, the Company shall disclose to Catania the basis on which it
makes this separate payment.
(b) Payments on account of Benefit Plans in the event of Catania's death.
If the terms of any of Plan Documents referred to in this section 2.3 would have
called for payments to be made following Catania's death had he continued as the
Company's Executive Vice President, Market and Product Development, and died
before July 18, 2002, then such payments will be made in the event Catania dies
before June 6, 2003.
Section 2.4. Legal fees. The Company shall reimburse Catania up to a
maximum of $5000, for the reasonable legal fees and expenses he has incurred as
a result of the negotiation and preparation of this Agreement.
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ARTICLE III
Miscellaneous
Section 3.1. Company successors. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
Company, its successors and assigns. Without limiting the generality of the
foregoing, the rights and obligations of the Company under this Agreement shall
be binding upon (a) any corporation or other business entity that shall
henceforth acquire some or all of the assets of the Company; (b) any corporation
or other business entity that shall henceforth be created in such a
restructuring to conduct a part or all of the Company's business operations; and
(c) any corporation or other business entity with which the Company shall
henceforth merge.
Section 3.2. Catania's successors. Catania's rights and obligations under
this Agreement (other than rights or benefits payable under the qualified plans,
which shall be governed in accordance with the terms of those plans) shall inure
to the benefit of and be binding upon his heirs, beneficiaries, successors, and
legal representatives.
Section 3.3. Nondisparagement obligations. Catania shall refrain from
making any statements to representatives of the news media, to employees or
former employees of the Company, to present or former members of the Board, or
to other persons which disparage or criticize the Company, the Chairman of the
Board, the Board or its members, the Company's management, or the Company's
business plans, including, but not limited to, its efforts to restructure its
business operations. The Company (including its officers and directors) shall
refrain from making any statements to representatives of the news media, to
employees or
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former employees of the Company, to present or former members of the Board
(except such confidential disclosures as may be reasonably required in
connection with the performance of their duties to the Board), or to other
persons which disparage or criticize Catania or his performance while an officer
of the Company.
Section 3.4. Amendments. No waiver, modification, or amendment of any
provision hereof shall be effective unless authorized by the Board and executed
in writing on behalf of the Company by an authorized officer. Any such waiver,
modification, or amendment shall require the written consent of Catania.
Section 3.5. Indemnification. This Agreement shall not affect Catania's
rights to indemnification by the Company for past conduct under the Board's
policy of indemnifying officers and directors. The Company will reimburse
Catania for the reasonable legal fees and costs he incurs as a result of any
legal challenge that may be made to the enforceability or legality of this
Agreement.
Section 3.6. Release of Company By Catania. In consideration of the
payments and other obligations by the Company under this Agreement, Catania, on
behalf of himself and his heirs, successors and assigns, hereby releases the
Company, the Company's subsidiaries and affiliates, its successors, and all of
the directors, officers, employees, agents, and attorneys of the Company and its
subsidiaries and affiliates, from any claims of any kind based on events
preceding the execution of this Agreement arising out of Catania's past
employment with the Company or his resignation as Executive Vice President,
Market and Product Development.
Section 3.7. Release of Catania By Company. In consideration of Catania's
resignation and the other obligations assumed by him under this Agreement, the
Company, on
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behalf of itself, its subsidiaries and affiliates, and its successors, hereby
releases Cantania from any claims of any kind based on events preceding the
execution of this Agreement arising out of Catania's employment with the
Company, his resignation, and the termination of his employment.
Section 3.8. Authority of the Board. Attached hereto and made a part hereof
as Exhibit D is a certified copy of the provision incorporated into the
Company's Articles of Incorporation, authorizing the President of the Company to
execute this Agreement on behalf of the Company.
Section 3.9. Waiver. Any failure by either party to this Agreement to
enforce any provision of this Agreement shall not be construed to be a waiver of
such provision or of any other provision hereof.
Section 3.10. Headings. The Article and Section headings are for
convenience of reference only and shall not define or limit the provisions
hereof.
Section 3.11. Applicable law. This Agreement shall at all times be governed
by and construed, interpreted and enforced in accordance with the laws of the
State of Illinois.
Section 3.12. Counterparts. This Agreement may be signed in counterparts.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its President and Catania has signed this Agreement as of the days below
written.
/s/ Xxxxxxx X. Xxxxxxx 7/16/01
------------------------- ---------------
XXXXXXX X. XXXXXXX DATE:
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CHICAGO BOARD OF TRADE:
/s/ Xxxxx X. Xxxxxx
-------------------------------------
XXXXX X. XXXXXX, as
President
WITNESS:
/s/ Xxxx Xxxxxx
-------------------------------------
Secretary
Board of Trade of the City of Chicago
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AMENDMENT NO. 1
TO
EXECUTIVE EMPLOYMENT AGREEMENT
XXXXXXX X. XXXXXXX
EXECUTIVE VICE PRESIDENT, MARKET AND PRODUCT DEVELOPMENT
BOARD OF TRADE OF THE CITY OF CHICAGO, INC.
THIS AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT (this
"Amendment"), dated as of February 28, 2001, is between the Board of Trade of
the City of Chicago, Inc., a Delaware corporation and successor by merger to
Board of Trade of the City of Chicago, an Illinois corporation (the "Company"),
and Xxxxxxx X. Xxxxxxx ("Executive"). Any capitalized term used herein and not
otherwise defined herein shall have the meaning ascribed to it in the Agreement
(as defined below).
WHEREAS, the Executive is currently serving as Executive Vice President,
Market and Product Development, of the Company;
WHEREAS, the Executive and the Company are parties to that certain
Executive Employment Agreement, dated as of May 18, 1999 (the"Agreement"),
which sets forth the terms and conditions of the Company's employment of the
Executive as the Company's Executive Vice President, Market and Product
Development, including, among other things, the term of Executive's exclusive
employment with the Company; and
WHEREAS, the parties hereto desire to make certain changes to the terms and
provisions of the Agreement,
NOW, THEREFORE, in consideration of the foregoing and of the agreements and
covenants contained herein, the parties hereto hereby agree as follows:
1. Amendments. The Agreement is hereby amended as follows:
(a) Section 1.01 of the Agreement is hereby amended by deleting the
first two (2) sentences of Section 1.01 in their entirety and replacing them
with the following:
"The Company hereby employs the Executive as its Executive Vice President,
Market and Product Development, and the Executive shall remain in such
position while employed by the Company for a term commencing on May 18,
1999 and ending on May 18, 2002 (the "Term End Date"); provided that,
for each calendar month following
May 18, 2001 that the Executive fulfills all of his obligations under, and
does not violate any of the terms and provisions of, this Executive
Employment Agreement, as amended, during such month (each such month, an
"Extension Period"), the Term End Date shall be extended for one calendar
month; provided furthe, that the Company or Executive may give notice to
the other party at any time during any Extension Period that it does not
wish to further extend the Term End Date, in which case, the Term End Date
shall be the end of the twelfth calendar month following the Extension
Period such notice is given (as extended or not, the "Employment Period")."
(b) Section 2.01 of the Agreement is amended by deleting the clause
immediately following the colon in the first sentence of Section 2.01 in its
entirety and replacing, it with the following:
"Effective as of January 1, 2001 and during the remainder of the Employment
Period, the Executive's minimum annual salary shall be Five Hundred
Thousand Dollars ($500,000)."
2. Release by Executive.
(a) Executive (for himself, his heirs, assigns or executors) releases and
forever discharges the Company, any of its affiliates, and its and their
directors, officers, agents and employees (the "Released Entities") from any and
all claims, suits, demands, causes of action, contracts, covenants, obligations,
debts, costs, expenses, attorneys' fees, Liabilities of whatever kind or nature
in law or equity, by statute or otherwise whether now known or unknown, vested
or contingent, suspected or unsuspected, and whether or not concealed or hidden,
which have existed or may have existed, or which do exist, through the date of
this Amendment ("Claims"), of any kind, which relate in any way to Executive's
employment with the Company.
(b) In signing this Amendment, Executive acknowledges that he intends that
it shall be effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. Executive expressly consents that this Amendment shall be
given full force and effect according to each and all of its express terms and
provisions, including those relating to unknown and unsuspected Claims
(notwithstanding any state statute that expressly limits the effectiveness of a
general release of unknown, unsuspected and unanticipated Claims), if any, as
well as those relating to any other Claims hereinabove mentioned or implied.
Executive acknowledges and agrees that this waiver is an essential and material
term of this Amendment and without such waiver the Company would not have agreed
to the benefits described in Section 1 hereof. Executive further agrees that in
the event he brings his own Claim in which he seeks damages against the Company,
or in the event he seeks to recover against the Company in any Claim brought by
a governmental agency on his behalf, this Amendment shall serve as a complete
defense to such Claims.
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3. Miscellaneous
(a) Governing Law. This Amendment shall in all respects be governed by
and construed in accordance with the Laws of the State of Illinois, without
regard to its conflicts of law doctrine.
(b) Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same instrument.
(c) Assignment. This Amendment shall be binding upon and inure to
the benefit of the successors and assigns of each party hereto, but no rights,
obligations or liabilities hereunder shall be assignable by any party without
the prior written consent of the other parties.
(d) Headings. The headings in this Amendment are solely for convenience
of reference and shall not be given any effect in the construction or
interpretation of this Amendment.
(e) Effect of Amendment. Except as provided in this Amendment, all
provisions of the Agreement are affirmed in all respects and remain in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto have signed this Amendment as of the
day and year first above written.
BOARD OF TRADE OF THE CITY
OF CHICAGO, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Chairman of the Board
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
WITNESS:
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
Draft
For Immediate Release Contact: Xxxxx X. Xxxxxxxx
000-000-0000
xxxx00@xxxx.xxx
---------------
CBOT Announces Resignation of Catania as Executive Vice President
Chicago, July 18 - The Chicago Board of Trade (CBOT(R)) today announced the
resignation of Xxxxxxx X. Xxxxxxx as Executive Vice President for Business
Development, effective today. Catania played a leadership role in the
development of new products and markets, as well as the marketing of the
CBOT(R)'s agricultural, financial and equity products, during his 20-year tenure
at the exchange. He has been involved in the global futures industry for over 30
years.
Of his resignation, Catania said, "The Chicago Board of Trade is at a critical
juncture in its long and successful lifetime, and my stepping down provides
Xxxxx Xxxxxx with some much needed flexibility to structure the exchange in
order to meet the many challenges that lie ahead."
CBOT(R) President and CEO Xxxxx X. Xxxxxx said, "Xxx has served our members and
member firms, customers and fellow employees with great distinction throughout
his years of service with the exchange. His experience and his knowledge of the
global commodity and financial markets have resulted in tremendous
contributions to the Chicago Board of Trade."
A member of many agricultural and financial market associations, Catania has
been a frequent speaker at industry meetings and conferences, and has
published many articles and several textbooks both independently and on behalf
of the CBOT(R). He maintains strong ties to the Asian and European markets, and
intends to provide consultancy services in marketing and product development to
the global financial services industry.
[LOGO] Chicago Board of Trade
Xxxxxxx X. Xxxxxxx
Executive Vice President
Business Development
July 4, 2001
Xx. Xxxxx Xxxxxx
President and CEO
Chicago Board of Trade
000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Dear Xxxxx:
I hereby resign my position as Executive Vice President for Business
Development, effective July 18, 2001.
I have enjoyed a long and successful tenure as an officer of the Chicago
Board of Trade. I fully realize and appreciate the task before you, and I
believe my resignation, will give you greater flexibility and therefore a
higher probability for success in meeting the challenges before you.
I would like to thank you and the Board of Directors for the consideration
afforded me in making this difficult decision.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
000 X. Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
000 000-0000
Fax 000 000-0000
EXHIBIT B
BOARD OF DIRECTORS
------------------
The Board of Directors shall be subject to the provisions set forth below:
Section 1. Chairman of the Board. The Chairman of the Board shall be the
presiding officer of all membership and Board meetings and shall exercise such
powers and perform such duties as generally appertain to that office. Subject to
the approval of the Board, he may appoint special committees and all other
committees where the method of appointment is not otherwise provided for, and
may temporarily fill any vacancy in any appointive office other than Non-Member
Director.
Section 2. First Vice Chairman and Second Vice Chairman. The First Vice
Chairman of the Board ("First Vice Chairman") shall perform the duties of the
Chairman of the Board in his absence or disability. In the absence or disability
of the Chairman of the Board and the First Vice Chairman, the Second Vice
Chairman of the Board ("Second Vice Chairman") shall perform the duties of the
Chairman of the Board. In the absence or disability of the Chairman of the Board
and the First Vice Chairman and the Second Vice Chairman, the Board may choose
temporarily an Acting Chairman of the Board.
Section 3. President. (1) The Board may elect a President of the
Corporation, who shall be a non-member, by the affirmative vote of at least two-
thirds of the full Board; (2) the Board is expressly authorized, by such
affirmative vote, to fix the compensation of such President to prescribe the
duties to be performed by him and to prescribe a tenure of office which tenure
shall be subject to termination for good cause or otherwise, by a Vote of not
less than two-thirds of the full Board; and (3) the Board is expressly
authorized to delegate to the President full power to carry on the day-to-day
activities of the Corporation, reserving to itself in such case the authority to
review the activities of the President and to determine the policies of the
Corporation.
Section 4. President's Duties. (1) The President shall be the Chief
Executive Officer of the Corporation responsible to the Board for the management
and administration of its business affairs; (2) he shall serve as chief liaison
between the Corporation and the public, including federal, state and local
government agencies; (3) he shall be a non-voting Director of the Corporation
and a non-voting member of the Executive Committee and shall be included for
purposes of determining whether a quorum of the Board of Directors or the
Executive Committee is achieved; (4) he shall be an ex officio non-voting member
of all appointed and special committees of the Corporation of which he is not a
regular member, (5) he shall employ such subordinate administrative personnel as
he may determine from time to time are required for the efficient management
and operation of the Corporation, and shall establish the qualifications, duties
and responsibilities of all subordinate administrative personnel; (6) subject to
the approval of the Board, he shall fix the compensation, terms and conditions
of employment of all subordinate administrative personnel, and may terminate the
employment of such personnel; (7) he shall supervise the activities of the
Departments of the Corporation; (8) he shall
B-1
execute all contracts on behalf of the Corporation; (9) he shall not engage in
any other business during his incumbency as President, nor shall he trade for
his own account or for the account of others in any commodity which is traded on
the Board of Trade of the City of Chicago, and (10) by his acceptance of the
office of President, he shall be deemed to have agreed and he shall have agreed
to uphold the Certificate of Incorporation, and Bylaws, and the Rules,
Regulations and Interpretations, of the Corporation. The Board may confer
upon the President such other and additional rights and responsibilities as it
may deem warranted; provided, however, that the Board shall not confer upon the
President the power to formulate the policies of the Corporation or to take
disciplinary action, arbitrate disputes or adjust claims against members except
in his capacity as Director upon review of such matters.
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