Exhibit 10.5
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 further, 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
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Chairman of the Board
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
WITNESS:
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Secretary
