Exhibit 10.12
BOARD OF TRADE OF THE CITY OF CHICAGO, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of February 20, 2001 (as amended and
supplemented from time to time in accordance with its terms, this "Agreement"),
between Board of Trade of the City of Chicago, Inc., a Delaware nonstock
corporation, with its principal office at 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (the "CBOT"), and Xxxxx X. Xxxxxx ("Executive").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The CBOT shall employ Executive, and Executive
hereby agrees to accept employment with the CBOT, upon the terms and conditions
set forth in this Agreement for the period beginning on the date hereof and
ending as provided in Section 4 hereof (the "Employment Period").
2. Position and Duties.
(a) Subject to the terms of this Agreement, during the Employment
Period, Executive shall serve as the President and Chief Executive Officer
of the CBOT and shall perform all duties associated with the management and
operation of the CBOT and its Subsidiaries (the "Companies"), including the
execution of all policies formulated by the board of directors of the CBOT
(the "Board"), the selection and hiring of personnel for the various
divisions and departments, the training and establishing of duties and
responsibilities of supervisory personnel, and improvements in
organization, accounting procedures and financial policy for the Companies,
in each case subject to the (i) Amended and Restated Certificate of
Incorporation of the CBOT, as amended; (ii) Amended and Restated Bylaws of
the CBOT, as amended (the "Bylaws"); (iii) Rules and Regulations of the
CBOT, as amended; and (iv) the power of the Board to expand or limit such
duties, responsibilities, functions and authority and to override actions
of officers of the CBOT. It is understood that, without limiting the
generality of the foregoing, Executive shall, pursuant to direction from
the Board, be responsible for overseeing and directing the implementation
of the proposed restructuring of the CBOT pursuant to the restructuring
transactions (as the same may be modified from time to time, the
"Restructuring Transactions") described in the CBOT's Registration
Statement on Form S-4 filed with the Securities and Exchange Commission on
January 26, 2001 (as amended from time to time, the "Registration
Statement").
(b) During the Employment Period, Executive shall report to the
Board and shall devote his best efforts and his full business time and
attention (except for permitted vacation periods and reasonable periods of
illness or other incapacity) to the business and affairs of the Companies.
Executive shall perform his duties, responsibilities and functions to the
Companies hereunder to the best of his abilities in a diligent,
trustworthy, businesslike and efficient manner.
(c) Notwithstanding anything to the contrary contained herein,
Executive may serve as a director of National Futures Association and the
Futures Industry Association and, subject to the approval of the Board,
serve as a director of other corporations that are not Competitors. In
addition, the Executive may participate in civic and charitable activities
that do not adversely affect his ability to carry out his responsibilities
hereunder.
(d) For purposes of this Agreement, "Subsidiaries" shall mean any
corporation or other entity of which the securities or other ownership
interests having the voting power to elect a majority of the board of
directors or other governing body are, at the time of determination, owned
by the CBOT, directly or through one of more Subsidiaries. In addition,
for purposes of this Agreement, "Competitor" shall mean any entity, which
primarily serves as a: (i) securities exchange or market, (ii) futures
exchange or market, (iii) securities or futures transaction execution
facility, or (iv) any combination of the foregoing.
3. Compensation and Benefits.
(a) During the Employment Period, Executive's base salary shall
be $1,250,000 per annum or such other higher rate as the Board may
determine from time to time (as increased, and not decreased, from time to
time, the "Base Salary"), which salary shall be payable by the CBOT in
regular installments in accordance with the CBOT's general payroll
practices for senior executive employees. In addition, during the
Employment Period, Executive shall be entitled to participate in all of the
CBOT's employee benefit programs for which senior executive employees of
the CBOT are generally eligible, and Executive shall be entitled to five
(5) weeks of paid vacation each year.
(b) In addition to the Base Salary, Executive shall be entitled
to a performance bonus (a "Performance Bonus") for the fiscal year ending
December 31, 2001, which shall not be less than $750,000. Thereafter, the
Board may, in its sole discretion, award a Performance Bonus to Executive
following the end of each subsequent fiscal year during the Employment
Period based upon Executive's performance and the CBOT's operating results
during such year. Payment of any Performance Bonus determined by the Board
shall be made in a single lump sum during the last calendar month of the
fiscal year.
(c) The CBOT will pay Executive retirement benefits determined
under the terms of the CBOT's regular qualified retirement plans (the
"Qualified Plans"), the non-qualified CBOT Deferred Compensation Plan (the
"Deferred Compensation Plan") and such other non-qualified plans or
arrangements as the Board may from time to time adopt for the benefit of
senior executive employees of the CBOT ("Other Plans" and together with the
Deferred Compensation Plan, "Non-Qualified Plans"); provided that, if
Executive's Employment Period expires or is terminated (i) (A) on or after
February 20, 2005; (B) as a result of the Executive's death or Permanent
Disability; (C) by the CBOT without Cause; or (D) by Executive with Good
Reason, and (ii) prior to Executive becoming 100% vested in the Qualified
Plans and Non-Qualified Plans, then Executive shall receive an additional
benefit payable from the Non-Qualified Plans (it being understood that, in
the event there does not exist a Non-Qualified Plan on such date, payment
shall be made from the general
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assets of the CBOT) in an amount equal to the amount of Executive's non-
vested benefits accrued as of the date of termination under the Non-
Qualified Plans and the Qualified Plans (without regard to limits under
federal law).
(d) As of the date hereof, the CBOT hereby grants to Executive
Equity Appreciation Rights (the "Incentive Award") in accordance with
Appendix A to this Agreement.
(e) Executive shall be eligible for such other perquisites, paid
for or reimbursed by the CBOT, that are customary for the chief executive
officer and president of a major financial institution, such as club
memberships, automobile allowance and reimbursement for financial planning
and other professional services. All such perquisites are subject to the
approval of the Board or a committee designated by the Board, which
approval shall not be unreasonably withheld, and shall not exceed twenty-
five thousand dollars ($25,000) in the aggregate for each fiscal year
during the Employment Period.
(f) The CBOT shall reimburse Executive for all reasonable
expenses incurred by him during the Employment Period in the course of
performing his duties and responsibilities under this Agreement, which are
consistent with the CBOT's policies in effect from time to time with
respect to travel, entertainment and other business expenses, subject to
the CBOT's requirements with respect to reporting and documentation of such
expenses. In addition, the CBOT will reimburse Executive for reasonable
legal and other professional services expenses incurred by Executive as a
result of negotiating and documenting Executive's employment arrangements
with the CBOT as soon as reasonably practicable following receipt of a
written xxxx or invoice for services performed in form reasonably
satisfactory to the CBOT.
4. Term; Termination.
(a) Unless extended by the mutual written agreement of the
parties or sooner terminated as provided herein, the term of Executive's
employment hereunder shall commence on the date hereof and shall end on
February 20, 2005.
(b) Except as otherwise provided in Sections 4(f), 4(i) and 4(j)
hereof, the Employment Period, Executive's right to any Base Salary,
Performance Bonus and any and all other rights of Executive as an employee
of the CBOT may be terminated as follows: (i) upon the death of Executive;
(ii) upon the Permanent Disability (hereinafter defined) of Executive;
(iii) by the CBOT at any time for Cause (hereinafter defined) immediately
upon notice from the CBOT to Executive, or at such later time as such
notice may specify; (iv) by the CBOT at any time without Cause immediately
upon notice from the CBOT to Executive, or at such later time as such
notice may specify; (v) by Executive for Good Reason (hereinafter defined)
immediately upon notice from Executive to the CBOT, or at such later time
as such notice may specify; or (vi) by Executive without Good Reason
immediately upon notice from Executive to the CBOT, or at such later time
as such notice may specify.
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(c) For purposes of this Agreement, a "Permanent Disability"
shall be deemed to have occurred upon the first to occur of the following
events: (i) if Executive, as a result of a mental or physical condition,
injury, sickness or incapacity, has become incapable of satisfactorily (as
determined by the Board) discharging the essential functions of Executive's
duties for one hundred twenty (120) consecutive days during any period of
twelve (12) consecutive months; or (ii) the adjudication of such Executive
as an incompetent or disabled person by a court of competent jurisdiction.
In the event of any dispute regarding the existence of
Executive's Permanent Disability hereunder, the matter will be resolved by
the determination of a majority of three physicians qualified to practice
medicine in Illinois, one to be selected by each of Executive and the CBOT,
and the third to be selected by the two designated physicians. For this
purpose, Executive will submit to appropriate medical examinations by the
doctors making the determination of Permanent Disability under this Section
4(c), and Executive hereby authorizes the disclosure and release to the
CBOT of such determination and all supporting medical records, which the
CBOT will hold in the strictest confidence. If Executive is not legally
competent, Executive's legal guardian or duly authorized attorney-in-fact
will act in Executive's stead, under this Section 4(c), for the purposes of
submitting Executive to the examinations, and providing the authorization
of disclosure, required under this Section 4(c).
(d) For purposes of this Agreement, "Cause" means: (i)
conviction of a felony or a crime involving moral turpitude (other than
Limited Vicarious Liability or a routine traffic violation); (ii)
Executive's material breach of this Agreement, provided that such breach is
not cured within 10 days after delivery to Executive of a notice from the
Board requesting cure; (iii) gross negligence or the willful or intentional
material misconduct by Executive in the performance of his duties under
this Agreement; and (iv) willful or intentional failure by Executive to
materially comply (to the best of his ability) with a specific, written
direction of the Board that is consistent with normal business practice and
not inconsistent with this Agreement and Executive's responsibilities
hereunder, provided that such refusal or failure (1) is not cured to the
best of Executive's ability within 10 days after the delivery thereof to
Executive and (2) is not based on Executive's reasonable good faith belief,
as expressed by written notice to the Board given within such 10-day
period, that the implementation of such direction of the Board would be
unlawful or unethical. For purposes of the preceding sentence, "Limited
Vicarious Liability" shall mean any liability which is: (I) based on acts
of the CBOT for which Executive is responsible solely as a result of his
office(s) with the CBOT and (II) provided that (x) he was not directly
involved in such acts and either had no prior knowledge of such intended
actions or promptly acted reasonably and in good faith to attempt to
prevent the acts causing such liability or (y) he did not have a reasonable
basis to believe that a law was being violated by such acts.
(e) For purposes of this Agreement, "Good Reason" means any of
the following: (i) the CBOT's material breach of this Agreement which is
not cured within 30 days after written notice thereof to the CBOT by
Executive; (ii) the assignment of Executive without his consent to a
position, responsibilities, or duties of a materially lesser
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status or degree of responsibility than his position, responsibilities, or
duties which is not cured within 30 days after written notice thereof to
the CBOT by Executive; (iii) causing or requiring Executive to report to
anyone other than the Board; (iv) the (A) failure of the CBOT to assign
this Agreement to a successor to the CBOT or failure of a successor to the
CBOT to explicitly assume and agree to be bound by the Agreement and (B)
failure of the CBOT or a successor to the CBOT to provide Executive with
employment with the successor to the CBOT on substantially similar terms;
or (v) requiring Executive to be principally based at any office or
location more than fifty (50) miles from the current corporate offices of
the CBOT.
(f) Except as otherwise provided in Sections 4(i) and 4(j)
hereof, effective upon the termination of the Employment Period, the CBOT
will be obligated to pay Executive only such compensation as is provided in
this Section 4(f), and such compensation shall be in lieu of all other
amounts and in settlement and complete release of all claims the Executive
may have against the Companies.
(i) If the Employment Period is terminated because of Executive's
death, Executive will be entitled to receive his Base Salary payable
in accordance with the CBOT's normal payroll practices through the end
of the sixth calendar month following the calendar month in which the
Employment Period is terminated and any portion of the Incentive Award
that is not vested at such time shall immediately vest.
(ii) If the Employment Period is terminated because of
Executive's Permanent Disability, (A) (1) during the first year of
such Permanent Disability (but in no event beyond the end of the
Employment Period, assuming the Employment Period had not otherwise
expired pursuant to the terms of this Agreement), Executive shall be
entitled to receive his Base Salary, and (2) during any remaining
period of such Permanent Disability (but in no event beyond the end of
the Employment Period, assuming the Employment Period had not
otherwise expired pursuant to the terms of this Agreement), Executive
shall be entitled to receive one half of his Base Salary payable in
accordance with the CBOT's normal payroll practices, and (B) any
portion of the Incentive Award that is not vested at such time shall
immediately vest. Notwithstanding the foregoing provisions of this
Section 4(f)(ii), the amounts payable to Executive under this Section
4(f)(ii) shall be reduced by any amounts received by Executive with
respect to any such Permanent Disability pursuant to any insurance
policy, plan or other employee benefit provided to Executive by the
CBOT.
(iii) If the CBOT terminates the Employment Period for Cause or
upon expiration of the Employment Period, Executive will be entitled
to receive his Base Salary payable in accordance with the CBOT's
normal payroll practices through and including the date of termination
or the last day of the Employment Period, as the case may be, and any
portion of the Incentive Award that has not been exercised prior to
such date shall be forfeited unless the Board, in its sole discretion,
determines otherwise.
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(iv) If the CBOT terminates the Employment Period without
Cause or if the Executive terminates the Employment Period with Good
Reason, Executive will be entitled to receive (A) his Base Salary
through the last day of the Employment Period (assuming the Employment
Period had not been terminated by either party prior to the expiration
of the Employment Period pursuant to Section 4(a) hereof), and (B) if
such date of termination occurs prior to payment of the Performance
Bonus for fiscal year 2001, $750,000, in each case payable in
accordance with the CBOT's normal payroll practices, and any portion
of the Incentive Award that is not vested at such time shall
immediately vest; provided that any portion of the Incentive Award
that is not exercised during the four-year period following the date
of termination shall be forfeited; provided further that Executive
shall be entitled to receive such compensation and exercise vested
portions of the Incentive Award if and only if Executive has complied
with and continues to comply with the provisions of Sections 5, 6 and
7 hereof.
(v) If Executive terminates the Employment Period without
Good Reason, Executive will be entitled to receive his Base Salary
through the date of termination, and any portion of the Incentive
Award that has not been exercised at such time shall be forfeited
(g) Executive's accrual of, or participation in plans providing
for, the benefits will cease at the effective date of the termination of
the Employment Period, and Executive will be entitled to accrued benefits
pursuant to such plans only as provided in such plans or as required by
law. Except with respect to a termination of the Employment Period by the
CBOT for Cause or by the Executive without Good Reason, Executive will be
entitled to receive, as part of his termination pay pursuant to Section
4(f) hereof, payment for any vacation, holiday, sick leave, or other leave
unused on the date the Employment Period is terminated in accordance with
established CBOT policies.
Notwithstanding the above, the CBOT shall have no obligation to
make any payments pursuant to Section 4(f) hereof until and unless
Executive executes and delivers to the CBOT an agreement, in form and
substance reasonably satisfactory to the CBOT and its counsel, in
settlement of and complete release of all claims Executive may have against
the CBOT, other than claims arising pursuant to Section 4(f) hereof and
such other provisions of this Agreement surviving termination of the
Employment Period.
(h) In the event the Employment Period is terminated by Executive
pursuant to Section 4(f)(v) above with less than thirty (30) days advance
written notice of same to the CBOT, the parties acknowledge that the CBOT
will be damaged thereby, but that such damages will be difficult to
calculate. Accordingly, Executive will promptly pay to the CBOT, or allow
the CBOT to set off against any monies it may then owe to Executive, as
liquidated damages a sum equal to Executive's Base Salary, on the date of
termination divided by 360 for each day Executive's notice of termination
hereunder is less than thirty (30) days.
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(i) Notwithstanding anything to the contrary contained herein, in
the event the Restructuring Transactions are not completed within twelve
(12) months of the date of this Agreement (it being understood that such
period may be extended by an additional six (6) months if, in the sole and
absolute discretion of Executive, reasonably satisfactory progress is being
made towards completion of the Restructuring Transactions), within thirty
(30) days following the end of such period (the "Walk-Away Period"),
Executive may terminate the Employment Period and be entitled to receive
his Base Salary payable in accordance with the CBOT's normal payroll
practices through the earlier of (x) the end of the second full fiscal year
following the fiscal year in which the Employment Period is terminated
pursuant to this Section 4(i) or (y) the expiration of the Employment
Period (assuming the Employment period had not otherwise been terminated by
the parties prior to the expiration of the Employment Period pursuant to
Section 4(a) hereof), provided that such payments shall cease if and when
Executive becomes employed by or becomes a consultant to a Competitor. For
purposes of this Agreement, the Restructuring Transactions shall be deemed
to be completed on the date the CBOT is converted from a nonstock, not-for-
profit corporation into a stock, for-profit corporation, as described in
the Registration Statement). Notwithstanding the foregoing, such payments
shall not cease if Executive becomes a member of the board of directors of
any organization that is not a Competitor. In the event of termination of
the Employment Period under this paragraph by Executive, any portion of the
Incentive Award that has not been exercised prior to the beginning of the
Walk-Away Period shall be forfeited.
(j) Notwithstanding anything to the contrary contained herein, in
the event a Change of Control (hereinafter defined) occurs, (i) Executive
or the CBOT may terminate the Employment Period and the Executive shall be
entitled to receive his Base Salary payable in accordance with the CBOT's
normal payable in accordance with the CBOT's normal payroll practices
through the earlier of (A) the end of the second full fiscal year following
the fiscal year in which the Employment Period is terminated pursuant to
this Section 4(j) or (B) the end of the Employment Period pursuant to the
terms of this Agreement and (ii) all outstanding Incentive Awards shall
become vested immediately prior to consummation of the transactions giving
rise to the Change of Control.
If, due to the benefits provided under this Section 4(j),
Executive becomes subject to any excise tax due to the characterization of
any amount payable hereunder as an excess parachute payment pursuant to
Sections 280G and 4999 of the Internal Revenue Code, the Company will pay
Executive a special bonus (the "Gross-up Bonus") in an amount such that the
net amount realizable by Executive after payment of all benefits under this
Section 4(j), including the Gross-up Bonus, is the same as if Executive
were not subject to such excise tax.
For purposes of the Agreement, the term "Change in Control"
means the occurrence, of the events described in any of subsections (i),
(ii), or (iii) below:
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(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of any equity
or other interest in the CBOT entitled to vote generally in the election of
directors ("CBOT Voting Interests") if, immediately after such acquisition,
such Person beneficially owns fifty percent (50%) or more of the combined
voting power of the outstanding CBOT Voting Interests. The foregoing
provisions of this subsection (i) shall be subject to the following:
(A) The following shall not constitute a "Change of Control"
(I) any acquisition by an employee benefit plan (or related
trust) sponsored or maintained by the CBOT or any entity
controlled by the CBOT (an "Employer Plan"); (II) any acquisition
by an underwriter temporarily holding securities pursuant to an
offering of such securities; or (III) any acquisition by any
Person pursuant to a transaction which complies with subsections
(ii)(A) and (ii)(B) of this definition.
(B) For purposes of the foregoing provisions of this
subsection (i), the following shall not be deemed to constitute
an "acquisition" by any Person: (I) any acquisition directly from
the CBOT (excluding any acquisition resulting from the exercise
of an exercise, conversion, or exchange privilege unless the
security being so exercised, converted, or exchanged was acquired
directly from the CBOT); and (II) any acquisition by the
Companies of CBOT Voting Interests.
(ii) Consummation of (I) a reorganization, merger, consolidation,
or other business combination involving the CBOT or (II) the sale or other
disposition of more than fifty percent (50%) of the operating assets of the
CBOT (determined on a consolidated basis), other than in connection with a
sale-leaseback or other arrangement resulting in the continued utilization
of such assets (or the operating products of such assets) by the CBOT (any
transaction described in part (I) or (II) being referred to as a "Corporate
Transaction"); excluding, however, a Corporate Transaction pursuant to
which each of subsections (A) and (B) below are applicable:
(A) All or substantially all of the individuals and entities
who are the beneficial owners, respectively, of the outstanding
CBOT Voting Interests immediately prior to such Corporate
Transaction beneficially own, directly or indirectly, more than
fifty percent (50%) of the combined voting power entitled to vote
generally in the election of directors of the ultimate parent
entity resulting from such Corporate Transaction (including,
without limitation, an entity which, as a result of such
transaction, owns the CBOT or all or substantially all of the
assets of the CBOT either directly or through one or more
subsidiaries) (the "Resulting Entity") in substantially the same
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proportions as their ownership, immediately prior to such
Corporate Transaction, of the outstanding CBOT Voting Interests,
as the case may be.
For purposes of this Clause (A), when determining whether the
beneficial owners of CBOT Voting Interests prior to the Corporate
Transaction beneficially own fifty percent (50%) or more of the
combined voting power of the Resulting Entity, any interest in
the Resulting Entity that is held prior to, or received in
connection with, the Corporate Transaction solely as a result of
the beneficial ownership of an entity other than the Companies by
the beneficial owners of CBOT Voting Interests shall be
disregarded.
(B) No Person (other than the CBOT, any Employer Plan or
related trust, the Resulting Entity or any entity controlled by
the Resulting Entity, and any Person which beneficially owned,
immediately prior to such Corporate Transaction, directly or
indirectly, fifty percent (50%) or more of the outstanding CBOT
Voting Interests) will beneficially own, directly or indirectly,
fifty percent (50%) or more of the then combined voting power of
the then outstanding voting interests of the Resulting Entity.
(iii) Approval by the members or shareholders of the CBOT of a
plan of complete liquidation or dissolution of the CBOT.
Notwithstanding the foregoing, it is expressly understood and
agreed by the CBOT and Executive that a restructuring of the CBOT pursuant
to or in connection with the Restructuring Transactions shall not
constitute a Change of Control.
5. Confidential Information. Executive acknowledges that the
information, observations and data (including trade secrets) obtained by him
while employed by the CBOT and concerning the business or affairs of the
Companies ("Confidential Information") are the property of the CBOT. Therefore,
Executive agrees that he shall not disclose to any unauthorized person or use
for his own purposes any Confidential Information without the prior written
consent of the Board, unless and to the extent that the Confidential Information
becomes generally known to and available for use by the public other than as a
result of Executive's acts or omissions. Executive shall deliver to the CBOT at
the termination or expiration of the Employment Period, or at any other time the
CBOT may request, all memoranda, notes, plans, records, reports, computer tapes,
printouts and software and other documents and data (and copies thereof)
embodying or relating to the Confidential Information, Work Product (as defined
below) or the business of the CBOT, which he may then possess or have under his
control.
6. Inventions and Patents. Executive acknowledges that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the Companies actual or anticipated business,
research and development or existing or future products or services and which
are conceived, developed or made by Executive while employed by the CBOT ("Work
Product") belong to the CBOT. Executive shall promptly disclose such Work
Product to the Board and, at the
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CBOT's expense, perform all actions reasonably requested by the Board (whether
during or after the Employment Period) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
In accordance with Section 2872 of the Illinois Employee Patent Act,
Ill. Rev. Stat. Chap. 140, (S) 301 et seq. (1983), Executive is hereby advised
that this Section 6 regarding the CBOT's ownership of Work Product does not
apply to any invention for which no equipment, supplies, facilities or trade
secret information of the Companies was used and which was developed entirely on
Executive's own time, unless (i) the invention relates to the business of the
Companies' or to the Companies' actual or demonstrably anticipated research or
development or (ii) the invention results from any work performed by Executive
for the Companies.
7. Non-Compete, Non-Solicitation.
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that in the course of his
employment with the CBOT he shall become familiar with the Companies'
trade secrets and with other Confidential Information concerning the
Companies and that his services shall be of special, unique and
extraordinary value to the CBOT. Therefore, Executive agrees that, (i)
during the Employment Period and (ii) in the event the Employment Period is
terminated by either party (which shall not include the expiration of the
Employment Period pursuant to Section 4(a) hereof), for one year thereafter
(the "Noncompete Period"), he shall not directly or indirectly own any
interest in, manage, control, participate in, consult with, render services
for, or in any manner engage in any business with a Competitor. Nothing
herein shall prohibit Executive from being a passive owner of not more than
2% of the outstanding stock of any class of a corporation which is publicly
traded, so long as Executive has no active participation in the business of
such corporation.
(b) During the Noncompete Period, Executive shall not directly or
indirectly through another person or entity (i) induce or attempt to induce
any employee of the Companies to leave the employ of the Companies, or in
any way interfere with the relationship between the Companies and any
employee thereof, (ii) hire any person who was an employee of the Companies
at any time during the Noncompete Period or (iii) induce or attempt to
induce any customer, supplier, licensee, licensor, franchisee or other
business relation of the Companies to cease doing business with the
Companies, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Companies.
(c) During the Noncompete Period and at any time thereafter,
neither Executive nor the CBOT will directly or indirectly through another
person or entity make any negative or disparaging statements or
communications regarding Executive or the Companies; provided that the CBOT
will be permitted to make any disclosures with respect to a termination of
Executive's Employment Period for Cause required by applicable law,
including, but not limited to, disclosures required by the Commodity
Exchange Act, as
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amended, the Securities Act of 1933, as amended (the "Securities Act"), and
the Securities Exchange Act of 1934, as amended, and related regulations.
(d) If, at the time of enforcement of this Section 7, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall
be substituted for the stated duration, scope or area and that the court
shall be allowed to revise the restrictions contained herein to cover the
maximum period, scope and area permitted by law. Executive acknowledges
that the restrictions contained in this Section 7 are reasonable and that
he has reviewed the provisions of this Agreement with his legal counsel.
(e) In the event of the breach or a threatened breach by
Executive of any of the provisions of this Section 7, the CBOT, in addition
and supplementary to other rights and remedies existing in its favor, shall
be entitled to specific performance and/or injunctive or other equitable
relief from a court of competent jurisdiction in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or
other security). In addition, in the event of an alleged breach or
violation by Executive of this Section 7, the Noncompete Period shall be
tolled until such breach or violation has been duly cured.
8. Executive's Representations. (a) Executive hereby represents and
warrants to the CBOT that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the CBOT, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents that he has consulted
with independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
(b) Executive hereby further represents and warrants to the
CBOT that (i) he is an "accredited investor" (as that term is defined in
Rule 501 of Regulation D under the Securities Act) and has knowledge and
experience in financial and business matters, is capable of evaluating the
merits and risks of the Incentive Award and has the capacity to protect his
own interests in connection with the proposed Incentive Award and (ii) he
has had an opportunity to review, consider and ask questions concerning any
and all documents and other information relating to the CBOT and the
Incentive Award, including, but not limited to, the Registration Statement.
9. Defense of Claims and Indemnity. (a) During the Employment
Period, and continuing after the termination of the Employment Period for a
period of three (3) years, Executive shall reasonably cooperate with the CBOT at
its request in the defense or prosecution of any claim that may be made by or
against the Companies. Such cooperation shall include, without limitation,
serving as a witness at trial or hearing, being deposed, and preparation for
same or otherwise
11
cooperating with the CBOT as determined to be necessary by the CBOT at its sole
discretion, for the defense or prosecution of a claim. For the period after
Executive terminates the Employment Period, the CBOT shall reimburse Executive
for all reasonable expenses in connection therewith, including travel expenses,
and shall compensate him at a daily rate equal to his Base Salary on the date
the Employment Period terminated, divided by 260, with days used for
preparation, travel and other related matters being included for purposes of
determining the compensation due to Executive. Less than full days shall be paid
for by the hour, determined by dividing the daily rate by eight. To the extent
reasonably practicable, the CBOT shall provide Executive with notice at least
ten (10) days prior to the date on which any such travel is required.
(b) Executive shall be indemnified by the CBOT against liability
as an officer of the CBOT as, and to the extent, provided for in the
Bylaws, provided that Executive's right to indemnification shall not, in
any event, result in a benefit to Executive that is less than provided by
the Bylaws in effect on the date of this Agreement.
10. Trading Prohibition. The trading prohibitions contained in the
CBOT's Personnel Policies and Procedures Manual shall apply to Executive during
the Employment Period.
11. Survival; Independent Provisions. Sections 4, 5, 6, 7, 8 and 9
shall survive and continue in full force in accordance with their terms
notwithstanding the expiration or termination of the Employment Period.
Executive's covenants in Sections 5, 6, 7, 8 and 9 are independent covenants and
the existence of any claim by Executive against any of the Companies under this
Agreement or otherwise will not excuse Executive's breach of any covenant in
Sections 5, 6, 7, 8 and 9.
12. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, sent by reputable overnight
courier service or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices to Executive:
--------------------
Xxxxx X. Xxxxxx
President and Chief Executive Officer
Board of Trade of the City of Chicago, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
With a copy to:
--------------
Xxxxxx X. Xxxxxxx, Esq.
Vedder, Price, Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Notices to the CBOT:
-------------------
12
Xxxxx X. Xxxxx, Esq.
Executive Vice President and General Counsel
Board of Trade of the City of Chicago
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
With a copy to:
--------------
Xxxx X. Xxxxxxx, P.C.
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any action in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
14. Complete Agreement. This Agreement embodies the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
15. No Strict Construction. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
16. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
17. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the CBOT and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his duties or obligations hereunder without the prior
written consent of the CBOT.
13
18. Choice of Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Illinois, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Illinois or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
19. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only with the prior written consent of the CBOT (as approved
by the Board) and Executive, and no course of conduct or course of dealing or
failure or delay by any party hereto in enforcing or exercising any of the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement or be deemed to be an implied waiver of any
provision of this Agreement.
* * * *
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BOARD OF TRADE OF THE CITY OF
CHICAGO, INC.
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
By: Xxxxxxxx X. Xxxxxxxx
Its: Chairman of the Board
/s/ Xxxxx X. Xxxxxx
------------------------------------
XXXXX X. XXXXXX
APPENDIX A
INTRODUCTION
Simultaneously with the execution of this Agreement, the CBOT is
granting to Executive equity appreciation rights, which may reward Executive for
appreciation in the value of memberships in the CBOT prior to completion of the
Restructuring Transactions and for appreciation in the value of the CBOT's Class
A common stock and Class B common stock if and when the CBOT completes the
Restructuring Transactions (the "Appreciation Rights").
GRANT OF APPRECIATION RIGHTS
The CBOT hereby grants to Executive, on the terms and conditions
stated below, Appreciation Rights, which shall be represented by appreciation
units ("Appreciation Units") with the class of Appreciation Right, number of
Appreciation Units per class and grant value per Appreciation Unit ("Grant
Value") set forth below. Each Appreciation Unit shall represent the value of
the class of Membership (prior to completion of the Restructuring Transactions)
or the value of the basket of Class A common stock and Class B common stock
(following completion of the Restructuring Transactions) indicated below
(collectively, "Covered Equity").
--------------------------------------------------------------------------------------------------
EQUITY APPRECIATION RIGHTS COVERED EQUITY
--------------------------------------------------------------------------------------------------
Class of Number of Grant Membership Class A Common Class B Common
Appreciation Appreciation Value Equivalent Per Stock Equivalent Stock Equivalent
Unit Units Per Unit Unit Per Unit/1/ Per Unit
--------------------------------------------------------------------------------------------------
A-1A 25 $400,000 1 Full A-1 Conversion 1 Share
Membership Shares Series B-1
--------------------------------------------------------------------------------------------------
A-1B 10 $600,000 1 Full A-1 Conversion 1 Share
Membership Shares Series B-1
--------------------------------------------------------------------------------------------------
A-2 10 $ 80,000 1 Associate A-2 Conversion 1 Share
Membership Shares Series B-2
--------------------------------------------------------------------------------------------------
A-4 5 $ 10,000 1 IDEM A-4 Conversion 1 Share
Membership Shares Series B-4
--------------------------------------------------------------------------------------------------
A-5 5 $ 20,000 1 COM A-5 Conversion 1 Share
Membership Shares Series B-5
--------------------------------------------------------------------------------------------------
_______________________
/1/ A-1 Conversion Shares shall mean the number of shares of Class A common
stock received with respect to one Full Membership as a result of completion of
the Restructuring Transactions; A-2 Conversion Shares shall mean the number of
shares of Class A common stock received with respect to one Associate Membership
as a result of completion of the Restructuring Transactions; A-4 Conversion
Shares shall mean the number of shares of Class A common stock received with
respect to one IDEM Membership as a result of completion of the Restructuring
Transactions; and A-5 Conversion Shares shall mean the number shares of Class A
common stock received with respect to one COM Membership as a result of
completion of the Restructuring Transactions.
A-1
Each Appreciation Unit shall represent the right to receive the excess
of the Fair Market Value of the Covered Equity with respect to such Appreciation
Unit on the date on which such Appreciation Unit is exercised pursuant the terms
herein over the Grant Value for such Appreciation Unit, in each case subject to
adjustment pursuant the terms herein (such amount is referred herein as the
"Spread").
For purposes hereof, the "Fair Market Value" of a class of Membership
in the CBOT prior to completion of the Restructuring Transactions, or one share
of Class B common stock of the CBOT following completion of the Restructuring
Transactions, shall be determined by computing the average sale price for a
particular class of Membership (e.g., Full Membership, Associate Membership,
IDEM Membership or COM Membership) or series of Class B common stock (e.g.,
Series B-1, Series B-2, Series B-4 or Series B-5), as the case may be, during
the ninety (90) calendar days prior to the date of exercise. The "Fair Market
Value" of the Class A common stock following completion of the Restructuring
Transactions shall be determined by computing the average sales price for the
Class A common stock during the ninety (90) calendar days prior to the date of
exercise.
EQUITY AFFECTED; ADJUSTMENTS
The Covered Equity and Grant Value with respect to each Appreciation
Unit granted hereunder shall be proportionately adjusted for any increase or
decrease in the number of Memberships as a result of a dividend,
reclassification, recapitalization, reorganization or other distribution prior
to completion of the Restructuring Transactions or any increase or decrease in
the number of issued and outstanding shares of Class A common stock or Class B
common stock as a result of a dividend, reclassification, recapitalization,
reorganization or other distribution following completion of the Restructuring
Transactions.
This grant of Appreciation Units shall not affect in any way the right
or power of the CBOT to pay dividends or to make adjustments, reclassifications,
reorganizations, or other changes of its capital or business structure or to
merge, consolidate, or dissolve, or to liquidate, sell, or transfer all or any
part of its business or assets.
A-2
VESTING SCHEDULE
Except as otherwise provided for in Section 4(f), (i) and (j) of this
Agreement, the right to exercise the Appreciation Units granted hereunder shall
vest over a four-year period, in accordance with the schedule set forth below.
------------------------------------------------------------------------------------------------
Number of Applicable Appreciation Units Vested
--------------------------------------------------------------------------
Class of
Appreciation Unit February 20, 2002 February 20, 2003 February 20, 2004 February 20, 2005
------------------------------------------------------------------------------------------------
A-1A 10 Xxxxx 0 Xxxxx 0 Xxxxx 0 Units
------------------------------------------------------------------------------------------------
A-1B 4 Units 2 Units 2 Units 2 Units
------------------------------------------------------------------------------------------------
A-2 4 Xxxxx 0 Xxxxx 0 Xxxxx 0 Units
------------------------------------------------------------------------------------------------
A-4 2 Xxxxx 0 Xxxx 0 Xxxx 0 Unit
------------------------------------------------------------------------------------------------
A-5 2 Xxxxx 0 Xxxx 0 Xxxx 0 Unit
------------------------------------------------------------------------------------------------
PAYMENT UPON EXERCISE OF APPRECIATION UNITS
Upon the exercise of an Appreciation Unit prior to completion of the
Restructuring Transactions, the CBOT shall deliver to Executive an amount
equivalent to the Spread in cash within 30 days thereof. Upon the exercise of
an Appreciation Unit following completion of the Restructuring Transactions, the
CBOT shall deliver to Executive an amount equivalent to the Spread in cash,
Class A common stock, or partly in cash and partly in Class A common stock, and
insofar as payment is made in the form of Class A common stock, the amount of
the payment shall be based on Fair Market Value of a share of Class A common
stock on the date of exercise. The Board or a committee designated by the Board
shall have the sole discretion to determine the form in which payment is to be
made on the exercise of an Appreciation Unit; provided, however, that the
proportion of the payment made with Class A common stock in connection with any
exercise of one or more Appreciation Units shall not exceed two-thirds (2/3rds)
of the total payment. No fractional shares of common stock shall be issued, and
no payments shall be made in lieu of fractional shares.
EFFECT OF TERMINATION OF EMPLOYMENT PERIOD
In the event of termination of Executive's Employment Period, the
Appreciation Units granted herein shall vest or terminate in accordance with
Sections 4(f), (i) and (j) of this Agreement.
METHOD OF EXERCISING APPRECIATION UNITS
The Appreciation Units granted herein may be exercised by the
Executive to the extent that the right to exercise has then vested pursuant to
the terms hereof by giving written notice of exercise to the CBOT specifying the
number and class of Appreciation Units to be exercised and accompanied by the
Withholding Reimbursement (hereinafter defined), if applicable.
A-3
RIGHTS AND PRIVILEGES AS A MEMBER OR STOCKHOLDER
Neither Executive nor any person claiming under or through Executive
shall be or have any of the rights or privileges of a member or stockholder of
the CBOT in respect of any of the Appreciation Units, unless and until an
Appreciation Right has vested, been exercised and, if applicable, certificates
representing shares of Class A common stock have been issued and delivered to
the him or her.
TRANSFERABILITY OF APPRECIATION UNITS
Except as otherwise provided herein, the rights and privileges
conferred by this grant of Appreciation Units shall not be transferred,
assigned, pledged, or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to sale under execution, attachment, or
similar process. Any attempt to transfer, assign, pledge, or otherwise dispose
of the rights and privileges, contrary to the provisions herein, or on any
attempted sale under any execution, attachment, or similar process on the rights
and privileges, the rights and privileges shall immediately become null and
void.
TERMINATION OF EQUITY APPRECIATION RIGHTS
Each Appreciation Unit and all rights and obligations thereunder shall
terminate on the tenth anniversary of their grant or as earlier provided for
pursuant to Sections 4(f), (i) and (j) of this Agreement.
COMPLIANCE WITH SECURITIES LAWS
The Appreciation Units granted herein are subject to the requirement
that, if at any time the Board or a committee designated by the Board shall
determine, in its sole discretion, that the listing, registration, or
qualification of the Appreciation Units or the shares of Class A common stock
subject to the Appreciation Units on any securities exchange or under any state
or federal law, or the consent or approval of any government regulatory body, is
necessary or desirable as a condition of, or in connection with, the granting of
the Appreciation Units or the issuance of shares of Class A common stock in
connection with the granting of the Appreciation Units, such Appreciation Units
may not be exercised or paid in whole or in part unless the listing,
registration, qualification, consent, or approval has been effected or obtained
free of any conditions not acceptable to the Board or a committee designated by
the Board.
EMPLOYMENT RIGHTS NOT CONFERRED BY GRANT
Nothing in this grant of Appreciation Units shall be construed as
giving Executive the right to be retained as an employee of the CBOT or as
impairing the rights of the CBOT to terminate his service pursuant to the terms
of this Agreement.
A-4
PAYMENT OF TAXES ON EXERCISE OF APPRECIATION UNITS
Whenever shares of Class A common stock are to be issued to Executive
in satisfaction or payment of the Spread in connection with the exercise of
Appreciation Units granted hereunder, the CBOT shall have the right to require
Executive to remit to the CBOT an amount sufficient to satisfy federal, state,
and local withholding tax requirements prior to the delivery of any certificate
or certificates for the shares of Class A common stock (a "Withholding
Reimbursement"). Whenever payments are to be made in cash, the payments shall
be net of an amount sufficient to satisfy federal, state, and local withholding
tax requirements.
A-5
