EXHIBIT 10.9
Form 10-K for Year Ended December 31, 2000
EMPLOYMENT AGREEMENT
The Chicago Mercantile Exchange ("CME") and Xxxxxx Xxxxxxxxxxx
("Employee") have entered into this Employment Agreement (the "Agreement") as of
March 8, 2000.
WHEREAS, CME desires to employ Employee and Employee desires
to be employed by CME, upon the terms and subject to the conditions set forth
herein; and
WHEREAS, CME's market is worldwide and Employee will be given
access to CME's customers, trade secrets, and confidential and proprietary
information;
NOW, THEREFORE, in consideration of the agreements and
covenants contained herein, the parties agree as follows:
1. EMPLOYMENT. CME hereby agrees to employ Employee and
Employee hereby agrees to be employed by CME upon the terms and subject to the
conditions contained in this Agreement. The term of employment of Employee by
CME pursuant to the Agreement (the "Employment Period") shall commence on March
8, 2000 (the "Effective Date") and shall end 11:59 p.m. on the day before the
second annual anniversary of the Effective Date, unless earlier terminated
pursuant to Section 6 hereof. The employment period may thereafter be extended
only by mutual agreement, in writing, between CME and Employee.
2. POSITION AND DUTIES. Employee shall have the title of
Managing Director of E-Business during the Employment Period. Employee shall
perform those duties as determined by CME's Chief Executive Officer, including
assisting in the development of electronic exchange markets by developing
product technology applications for business to business transactions, as well
as clearing and payments systems. During the Employment Period, Employee shall
perform faithfully and loyally and to the best of his abilities the duties
assigned to him hereunder and shall devote his full business time, attention and
effort to the affairs of CME. Employee shall be subject to CME's employment
policies in effect or as modified.
3. COMPENSATION. (a) BASE SALARY. During the Employment
Period, the CME shall pay to Employee a base salary at a rate of $250,000 per
annum ("Base Salary"), payable in accordance with CME's normal payment schedule.
(b) BONUSES. Employee shall receive a guaranteed bonus of
$200,000 for the 2000 calendar year, payable no later than January 31, 2001. Any
other bonus during the term of this Agreement shall be provided at the sole
discretion of the CME.
4. BENEFITS. Employee shall be entitled to insurance,
vacation and other employee benefits commensurate with his position in
accordance with CME's policies for executives in effect from time to time.
Employee acknowledges receipt of a summary of CME's employee benefits policies
in effect as the date of this Agreement.
5. EXPENSE REIMBURSEMENT. During the Employment Period,
CME shall reimburse Employee, in accordance with the CME's policies and
procedures, for all proper expenses incurred by him in the performance of his
duties hereunder.
6. TERMINATION. (a) DEATH. Upon the death of Employee,
this Agreement shall automatically terminate and all
rights of Employee and his heirs, executors and administrators to compensation
and other benefits under this Agreement shall cease, except for compensation
which shall have accrued to the date of death, including accrued Base Salary and
a proportionate share of his unpaid guaranteed bonus ($20,000 for each full
month employed during the calendar year 2000, except for the month of March 2000
for which he shall be regarded as being employed for the full month).
(b) DISABILITY. CME may, at its option, terminate this
Agreement upon written notice to Employee if Employee, because of physical or
mental incapacity or disability, fails to perform the essential functions of his
position, with or without reasonable accommodation, required of him hereunder
for a continuous period of 90 days or any 120 days within any 12-month period.
Upon such termination, all obligations of CME hereunder shall cease, except for
payment of accrued Base Salary and the proportionate share, as defined above, of
the guaranteed bonus. In the event of any dispute regarding the existence of
Employee's incapacity hereunder, the matter shall be resolved by the
determination of a physician selected by the Chief Executive Officer of CME.
Employee shall have the right to challenge that determination by presenting a
contrary determination from a physician of his choice. In such event, a
physician selected by agreement of Employee and CME will make the final
determination. The Employee shall submit to appropriate medical examinations for
purposes of making the medical determinations hereunder.
(c) CAUSE. (i) CME may, at its option, terminate
Employee's employment under this Agreement for Cause. As used in this Agreement,
the term "Cause" shall mean any one or more of the following:
(A) any refusal by Employee to perform his
duties and responsibilities under this Agreement or violation of any
rule, regulation or guideline imposed by a regulatory or self
regulatory body having jurisdiction over CME, after having been given
written notice by CME and seven (7) days to cure such refusal or
violation;
(B) any intentional act of fraud, embezzlement,
theft or misappropriation of CME funds by Employee or Employee's
admission or conviction of a felony or of any crime involving moral
turpitude, fraud, embezzlement, theft or misrepresentation;
(C) any gross negligence or willful misconduct
of Employee resulting in a financial loss or liability to CME or damage
to the reputation of CME;
(D) any breach by Employee of any one or more of
the covenants contained in Section 7, 8 or 9 hereof.
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(ii) The exercise of the right of CME to terminate this
Agreement pursuant to this Section 6(c) shall not abrogate any other rights or
remedies of CME in respect of the breach giving rise to such termination.
(iii) If CME terminates Employee's employment for Cause, he
shall be entitled to accrued Base Salary through the date of the termination of
his employment and other employee benefits to which Employee is entitled upon
his termination of employment with CME, in accordance with the terms of the
plans and programs of CME.
(d) TERMINATION WITHOUT CAUSE. If, during the Employment
Period, CME terminates the employment of Employee hereunder for any reason other
than a reason set forth in subsections (a), (b) or (c) of this Section 6:
(i) Employee shall be entitled to receive accrued Base
Salary through the date of the termination of his employment, the
proportionate share, as defined above, of the guaranteed bonus, and
other employee benefits to which Employee is entitled upon his
termination of employment with CME, in accordance with the terms of the
plans and programs of CME; and
(ii) a one time lump sum severance payment equal to 12
months of his Base Salary or the amount of Base Salary which Employee
would earn through the termination date of this Agreement, whichever is
less.
(e) VOLUNTARY TERMINATION. Upon 60 days prior written
notice to CME (or such shorter period as may be permitted by CME), Employee may
voluntarily terminate his employment with CME prior to the end of the Employment
Period for any reason. If Employee voluntarily terminates his employment
pursuant to this subsection (e), he shall be entitled to receive accrued Base
Salary through the date of the termination of his employment and other employee
benefits to which Employee is entitled upon his termination of employment with
CME, in accordance with the terms of the plans and programs of CME.
7. CONFIDENTIAL INFORMATION. Employee acknowledges that
the successful development of CME's services and products, including CME's
trading programs and systems, current and potential customer and business
relationships, and business strategies and plans requires substantial time and
expense. Such efforts generate for CME valuable and proprietary information
("Confidential Information") which gives CME a business advantage over others
who do not have such information. Confidential information includes, but is not
limited to the following: trade secrets, technical, business, proprietary or
financial information of CME not generally known to the public, business plans,
proposals, past and current prospect and customer lists, trading methodologies,
systems and programs, training materials, research data bases and computer
software; but shall not include information or ideas acquired by Employee prior
to his employment with CME if such pre-existing information is generally known
in the industry and is not proprietary to CME.
(a) Employee shall not at anytime during the Employment
Period or thereafter, make use of or disclose, directly or indirectly to any
competitor or potential competitor of CME, or divulge, disclose or communicate
to any person, firm, corporation, or
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other legal entity in any manner whatsoever, or for his own benefit and that of
any person or entity other than CME, any Confidential Information;
(b) Upon termination for any reason, Employee shall
return to CME all records, memoranda, notes, plans, reports, computer tapes and
equipment, software and other documents or data which constitute Confidential
Information which he may then possess or have under his control (together with
all copies thereof) and all credit cards, keys and other materials and equipment
which are CME's property that he has in his possession or control.
8. NON-COMPETITION; NON-SOLICITATION. (a) GENERAL. The
Employee acknowledges that in the course of his employment with CME he has and
will become familiar with trade secrets and other confidential information
concerning CME and that this information and his services are and will be of
special, unique and extraordinary value to CME.
(b) NON-COMPETITION. Employee agrees that during the
period of his employment with CME and for a period of one year after the
termination of this Agreement for any reason (the "Non-competition Period") he
shall not in any manner, directly or indirectly, through any person, firm or
corporation, alone or as a member of a partnership or as an investor or employee
of or consultant to any other corporation or enterprise or otherwise, engage or
be engaged, or assist any other person, firm, corporation or enterprise in
engaging or being engaged, in developing product and technology applications for
business transactions or developing product and technology applications for
clearing and payments systems in connection with an electronic exchange market
for spot commodities, raw materials and non-traditional or exotic derivative
products in any area worldwide.
(c) NON-SOLICITATION. Employee further agrees that during
the Non-competition Period he shall not (i) in any manner, directly or
indirectly, induce or attempt to induce any employee of CME to terminate or
abandon his or her employment for any purpose whatsoever or (ii) call on,
service, solicit or otherwise do business with any customer of CME or any
potential customer whose business CME has solicited during the period of
Employee's employment hereunder.
(d) REFORMATION. If, at any time of enforcement of this
Section 8, a court holds that the restrictions stated herein are unreasonable,
the parties hereto agree that the maximum period, scope or geographical area
reasonable under the circumstances shall be substituted for the stated period,
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.
9. INTELLECTUAL PROPERTY. During the Employment Period,
Employee shall disclose to CME and treat as confidential information all ideas,
methodologies, product and technology applications that he develops during the
course of his employment with CME that relates directly or indirectly to CME's
e-commerce business or any other CME business. Employee hereby assigns to CME
his entire right, title and interest in and to all discoveries and improvements,
patentable or otherwise, trade secrets and ideas, writings and copyrightable
material, which may be conceived by Employee or developed or acquired by him
during the Employment Period, which may pertain directly or indirectly to the
business of the CME. Employee shall at any time during or after the Employment
Period, upon CME's request,
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execute, acknowledge and deliver to CME all instruments and do all other acts
which are necessary or desirable to enable CME to file and prosecute
applications for, and to acquire, maintain and enforce, all patents, trademarks
and copyrights in all countries with respect to intellectual property developed
or which was being developed during the Employment Period.
10. REMEDIES. Employee agrees that given the nature of
CME's business, the scope and duration of the restrictions in paragraphs 7, 8
and 9 are reasonable and necessary to protect the legitimate business interests
of CME and do not unduly interfere with Employee's career or economic pursuits.
Employee recognizes and agrees that a breach of any or all of the provisions of
Sections 7, 8 and 9 will constitute immediate and irreparable harm to CME's
business advantage, for which damages cannot be readily calculated and for which
damages are an inadequate remedy. Accordingly, Employee acknowledges that CME
shall therefore be entitled to an injunction or injunctions to prevent any
breach or threatened breach of any such section. Employee agrees to reimburse
CME for all costs and expenses, including reasonable attorney's fees, incurred
by CME in connection with the enforcement of its rights under Sections 7, 8 and
9 of this Agreement.
11. SURVIVAL. Sections 7, 8, 9 and 10 of this Agreement
shall survive and continue in full force and effect in accordance with their
respective terms, notwithstanding any termination of the Employment Period.
12. ARBITRATION. Except with respect to Sections 7, 8,
and 9, any dispute or controversy between CME and Employee, whether arising out
of or relating to this Agreement, the breach of this Agreement, or otherwise,
shall be settled by arbitration in Chicago, Illinois, in accordance with the
applicable arbitration rules of the American Arbitration Association and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitrator shall have the authority to award
any remedy or relief that a court of competent jurisdiction could order. Except
as necessary in court proceedings to enforce this arbitration provision or an
award rendered hereunder, or to obtain interim relief, neither a party nor an
arbitrator may disclose the existence, content or results of any arbitration
hereunder without the prior written consent of CME and Employee.
13. NOTICES. All notices and other communications
required or permitted hereunder shall be in writing and shall be deemed given
when (i) delivered personally or by overnight courier to the following address
of the other party hereto (or such other address for such party as shall be
specified by notice given pursuant to this Section) or (ii) sent by facsimile to
the following facsimile number of the other party hereto (or such other
facsimile number for such party as shall be specified by notice given pursuant
to this Section), with the confirmatory copy delivered by overnight courier to
the address of such party pursuant to this Section 13:
If to CME, to:
Xxxxx Xxxxxxx
Senior Vice President and General Counsel
Chicago Mercantile Exchange
00 X. Xxxxxx
Xxxxxxx, XX 00000
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(000) 000-0000
If to Employee, to:
Xxxxxx X. Xxxxxxxxxxx
000 X. Xxxxxxxxx Xx. #0000
Xxxxxxx, XX 00000
(312) ___- _____
14. 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 applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision 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.
15. ENTIRE AGREEMENT. This Agreement constitutes the
entire Agreement and understanding between the parties with respect to the
subject matter hereof and supersedes and preempts any prior understandings,
agreements or representations by or between the parties, written or oral, which
may have related in any manner to the subject matter hereof.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be
enforceable by Employee and his heirs, executors, administrators and legal
representatives, and by CME and its successors and assigns.
17. GOVERNING LAW. This Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Illinois without regard to principles of conflict of laws.
18. ACKNOWLEDGMENT. Employee acknowledges that he has
read, understood, and accepts the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
CHICAGO MERCANTILE EXCHANGE XXXXXX XXXXXXXXXXX
BY: BY:
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Date: Date:
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