[NASDAQ LOGO]
February 8, 2001 (as amended March 21, 2002)
Xx. Xxxxx Xxxxx XX
000 Xxxx 00xx Xxxxxx
Xxx. 34D
New York, NY 10023
Dear Xxxxx:
This letter agreement (the "Letter Agreement"), serves as an amendment
and restatement of the offer letter presented to you on March 8, 2001. This
Letter Agreement contains the entire understanding between you and The Nasdaq
Stock Market, Inc. (the "Company") with respect to your employment with the
Company and any and all agreements including, without limitation, the March
8, 2001 offer letter (other than your Option Agreements and Restricted Stock
Agreement described in Paragraph 4 of this Letter Agreement) previously
entered into shall be null and void. This Letter Agreement may not be
altered, modified, or amended except by written instrument signed by the
parties hereto.
1. Your position with the Company is Vice Chairman and Executive Vice
President, Corporate Client Group and in this role you report directly to the
Chairman and Chief Executive Officer.
2. Your annual base salary is $400,000 beginning with your start date
of March 12, 2001. Your base salary will be reviewed periodically for
purposes of increasing it based upon your performance.
3. You are entitled to receive a guaranteed minimum annual bonus of
$700,000 for each of calendar year 2001 and 2002, payable with respect to
each such calendar year at the same time as the Company pays bonus awards to
other senior executives, but in no event later than March 1st following the
calendar year with respect to which the bonus relates contingent upon your
not having (a) been terminated for "Cause" or (b) voluntarily resigned
without "Good Reason." Notwithstanding the foregoing, under the terms of our
incentive compensation program, as adopted by the Management Compensation
Committee of our Board of Directors (the "Board"), 20% of your annual bonus
(the "Retained Amount") will be retained for 24 months following the date
bonuses are paid in accordance with the terms of that program.
For purposes of this Letter Agreement the terms "Cause", "Good Reason"
and "Change in Control" shall have the following meanings:
(a) Cause means (i) you engaging in willful misconduct that is
injurious to the Company or its affiliates, (ii) your embezzlement or
misappropriation of funds or property of the Company or its affiliates,
or your conviction of a felony or your entrance of a plea of guilty or
nolo contendere to a felony, (iii) your willful failure or refusal to
substantially perform your duties or responsibilities that continues
after being brought to your attention (other than any such failure
resulting from your incapacity due to disability), or (iv) your
violation any restrictive covenants entered into between you and the
Company or the Company's Guidelines for Appropriate Conduct as
described in the Company's Employee Handbook, or the Company's Code of
Conduct.
(b) Good Reason means a material diminishment of your
responsibilities and compensation, relocation without your consent, or
a Change in Control.
(c) Change in Control means the first to occur of any one of
the events set forth in the following paragraphs:
(i) any "Person," as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") (other than (A) the Company, (B) any trustee or other
fiduciary holding securities under an employee benefit plan of
the Company, (C) any entity owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of the Common Stock of the Company ("Shares"),
and (D) the National Association of Securities Dealers, Inc.), is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly (not including any
securities acquired directly (or through an underwriter) from the
Company or its affiliates), of 25% or more of the Shares;
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving on
the Company's Board of Directors (the "Board"): individuals who,
on March 12, 2001, were members of the Board and any new director
(other than a director whose initial assumption of office is in
connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to
the election of directors of the Company) whose appointment or
election by the Board or nomination for election by the Company's
stockholders was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors on March 12, 2001 or whose appointment, election
or nomination for election was previously so approved or
recommended;
(iii) there is consummated a merger or consolidation of the
Company with any other corporation or the Company issues Shares
in connection with a merger or consolidation of any direct or
indirect subsidiary of the Company with any other corporation,
other than (A) a merger or consolidation that would result in the
Shares of the Company outstanding immediately prior thereto
continuing to represent (either by
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remaining outstanding or by being converted into voting
securities of the surviving or parent entity) more than 50% of
the Company's then outstanding Shares or 50% of the combined
voting power of such surviving or parent entity outstanding
immediately after such merger or consolidation or (B) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person, directly or
indirectly, acquired 25% or more of the Company's then
outstanding Shares (not including any securities acquired
directly (or through an underwriter) from the Company or its
affiliates); or
(iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or there is consummated an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets (or any transaction
having a similar effect), other than a sale or disposition by the
Company of all or substantially all of the Company's assets to an
entity, at least 50% of the combined voting power of the voting
securities of which are owned directly or indirectly by
stockholders of the Company in substantially the same proportions
as their ownership of the Company immediately prior to such sale.
4. You were granted pursuant to the terms of the Company's Equity
Incentive Plan (the "Equity Plan"), 14,000 incentive stock options, 250,000
non-qualified stock options and 15,900 shares of restricted stock. The terms
and conditions of these awards are governed by the Equity Plan and the Stock
Option and Restricted Stock Award Agreements entered into by and between you
and the Company.
5. You will also be eligible for future equity grants/awards
commensurate with the Company policy or practice in effect at the time of
issuance. Any such awards will require current and continued employment with
the Company and continued satisfactory performance.
6. You are entitled to four (4) weeks paid vacation per year.
7. The Company shall pay or reimburse you for your reasonable legal
fees and expenses incurred in connection with the negotiation and execution
of this Letter Agreement upon presentation by you of written invoices or
receipts setting forth in reasonable detail the basis for such legal fees and
expenses.
8. During your employment with the Company you shall be provided with
benefits on the same basis as benefits are generally made available to other
senior executives of the Company, including without limitation, medical,
dental, vision, disability, life insurance and pension benefits.
Xxxxx, we look forward to your continued employment with the Company.
Sincerely,
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Xxxxxxxx Xxxxxxx
Chief Executive Officer
The Nasdaq Stock Market, Inc.
Agreed and Accepted:
/s/ Xxxxx Xxxxx, XX 3/21/02
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Xxxxx Xxxxx, XX Date
Agreed and Accepted:
/s/ Xxxxxxxx Xxxxxxx 3/22/02
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Xxxxxxxx Xxxxxxx, CEO of Date
The Nasdaq Stock Market, Inc.
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