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EXHIBIT 10.12
STRICTLY CONFIDENTIAL
Execution Copy
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of November 16, 2000, by and between NEW
YORK MERCANTILE EXCHANGE, which has its principal place of business at Xxx Xxxxx
Xxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and XXXX X. XXXXXXX (the
"Executive").
WHEREAS, the parties wish to amend and restate the terms on which the
Executive is employed by the Company;
NOW, THEREFORE, the parties agree as follows:
1. Term. The Company hereby employs the Executive, and the Executive
hereby accepts such employment, for a term commencing as of July 1, 2000 and
ending on December 31, 2003, unless sooner terminated in accordance with the
provisions of Section 4 or Section 5 (the "Initial Term"); with such employment
to continue thereafter for successive one-year periods (each an "Extension
Term") in accordance with the terms of this Agreement (subject to termination as
aforesaid) unless either party notifies the other party of non-renewal in
writing prior to 30 days before the expiration of the Initial Term or an
Extension Term, as applicable (the period during which the Executive is employed
hereunder, including the Initial Term and each Extension Term, being hereinafter
referred to as the "Term").
2. Duties. During the Term, the Executive shall be employed by the Company
as Executive Vice President of the Company, and, as such, the Executive shall
faithfully perform for the Company the duties of said office and shall perform
such other duties of an executive, managerial or administrative nature,
consistent with his office, as shall be specified and designated from time to
time by the Board of Directors of the Company (the "Board"). The Executive shall
devote substantially all of his business time and effort to the performance of
his duties hereunder.
3. Compensation.
3.1 Salary. The Company shall pay the Executive during the Term a
salary at the rate of $500,000 per year (the "Annual Salary"). For each
Extension Term, the Annual Salary shall be equal to the product of (x) $500,000,
multiplied by (y) a fraction, the numerator of which is the CPI Index (as
hereinafter defined) most recently published prior to the first day of the
Extension Term and the denominator of which is the CPI Index most recently
published prior to the date of this Agreement. As used in this Agreement, the
"CPI Index" means the Consumer Price Index for All Urban Consumers, all items
index (1982-84=100), U.S. city average, published by the U.S. Bureau of Labor
Statistics, or any successor index; provided, however, that the adjustment
provided for in this sentence shall not be made if it otherwise would result in
a reduction of the Annual Salary. The Annual Salary shall be payable in
accordance with the customary payroll practices of the Company applicable to its
senior executives.
3.2 Bonus.
(a) In addition to the Annual Salary, for each calendar year ending
during the Initial Term, the Executive shall have the opportunity to receive an
annual bonus (the "Annual Bonus") in an amount to be determined by the Board,
but in no event less than $250,000 per year. The Executive's minimum bonus
entitlement for the year ending December 31, 2000 shall be $250,000 and shall
not be
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prorated. For each Extension Term, the minimum Annual Bonus shall be equal to
the product of (x) $250,000, multiplied by (y) a fraction, the numerator of
which is the CPI Index most recently published prior to the first day of the
Extension Term and the denominator of which is the CPI Index most recently
published prior to the date of this Agreement; provided, however that the
adjustment provided for in this sentence shall not be made if it otherwise would
result in a reduction of the Annual Bonus.
(b) In addition to the bonus payable for the year ending December
31, 2003, an additional bonus payment in the amount of $300,000 shall be payable
on that date if the Company (or a successor entity or holding company) shall not
by that time have completed an initial public offering or private placement of
equity securities and in connection therewith granted stock options to the
Executive in accordance with Section 3.4.
(c) The Annual Bonus shall be deemed first earned and accrued on,
but shall be payable not later than, December 31 of each year during the Term.
3.3 Benefits.
(a) The Executive shall be permitted during the Term to participate
in any group life, hospitalization or disability insurance plans, health
programs, retirement plans, fringe benefit programs and similar benefits that
may be available to other senior executives of the Company generally, on the
same terms as such other executives, in each case to the extent that the
Executive is eligible under the terms of such plans or programs.
(b) Notwithstanding the provisions of Section 3.3(a):
(i) the Company shall provide $4,950 per year towards the cost of
term life insurance coverage to be obtained by the Executive (providing for
aggregate payments in the event of the Executive's death to the beneficiaries
named by the Executive of approximately $3,000,000), payable when the Executive
provides satisfactory evidence of such coverage and the cost thereof;
(ii) the Executive shall be entitled to first class air travel when
traveling at the Company's request, but, if requested by the Company, the
Executive shall be required to use upgrades and similar cost control techniques,
if available;
(iii) the Executive shall be permitted to be accompanied by family
members when travelling on the Company's business so long as the cost of the
Executive's travel and accommodations is not thereby rendered more expensive for
the Company, in which case the Executive shall bear such additional expense; and
(iv) the Company shall provide $2,500 per year toward the cost of
disability insurance coverage to be obtained by the Executive, payable when the
Executive provides satisfactory evidence of such coverage and the cost thereof.
3.4 Grant of Option.
(a) The Company is pursuing a corporate reorganization and
anticipates that, following the completion of the reorganization, it may seek to
pursue an initial public offering (or private placement) of the equity
securities of a newly formed holding company. The Executive acknowledges that
either or both of the corporate reorganization and the initial public offering
(or private placement) might not be completed, and the Company has not promised
that either will in fact occur. The Company
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reserves the right to change its plans in this regard at any time and will incur
no liability to the Executive if it does so.
(b) If and when the Company completes a corporate reorganization and
the Company or its successor in interest or a holding company thereof completes
an initial public offering or private placement of its equity securities,
effective not later than the closing of the initial public offering or private
placement, the Executive shall be granted an option (the "Option"), which shall
not be required to be qualified under Section 422 of the Internal Revenue Code
of 1986, as amended, to purchase common stock of the issuer of the equity
securities in the initial public offering or private placement at a per-share
price not greater than the price at which the securities first are offered to
the public. The number of securities subject to such option shall be consistent
with the number of securities issuable pursuant to options granted to other
officers and executives of the Company of comparable seniority.
(c) Except as otherwise provided in this Agreement (including
without limitation Section 5.2(a)), (i) the Option, to the extent that it has
not become exercisable (and does not otherwise become exercisable) at the time
the Executive's employment terminates, shall never become exercisable and shall
be forfeited upon such termination, and (ii) the term of the Option (subject to
early expiration, termination or forfeiture) shall be 10 years.
(d) The Option shall be subject to such other terms and conditions
(including without limitation provisions relating to method of exercise and
payment, vesting, withholding, limited periods after termination of employment
within which the Option may be exercised, nontransferability and rights of
repurchase and first refusal) as may be determined by the Board of Directors (or
comparable governing body) of the entity granting the Option, which shall be
comparable to the provisions of options granted to other officers and executives
of the Company of comparable seniority.
3.5 Expenses. The Company shall pay or reimburse the Executive for
all ordinary and reasonable out-of-pocket expenses actually incurred (and, in
the case of reimbursement, paid) by the Executive during the Term in the
performance of the Executive's services under this Agreement; provided that the
reimbursement requests are in compliance with expense reimbursement policies
adopted from time to time by the Board.
4. Termination upon Death or Disability. If the Executive dies during the
Term, the Term shall terminate as of the date of death, and the obligations of
the Company to or with respect to the Executive shall terminate in their
entirety upon such date except as otherwise provided under this Section 4. If
the Executive by virtue of ill health or other disability is unable (including
with reasonable accommodation) to perform substantially and continuously the
duties assigned to him for more than 180 consecutive or non-consecutive days out
of any consecutive 12-month period, the Company shall have the right, to the
extent permitted by law, to terminate the employment of the Executive upon
notice in writing to the Executive. Upon termination of employment due to death
or disability, in addition to any insurance benefits that may be payable, (i)
the Executive (or the Executive's estate or beneficiaries in the case of the
death of the Executive) shall be entitled to receive any Annual Salary and other
benefits earned and accrued under this Agreement prior to the date of
termination (and reimbursement under this Agreement for expenses incurred prior
to the date of termination), (ii) in the case of disability, the outstanding,
unvested options that are due to vest in that calendar year shall vest and
become immediately exercisable, and (iii) the Executive (or, in the case of his
death, his estate and beneficiaries) shall have no further rights to any other
compensation or benefits hereunder on or after the termination of employment, or
any other rights hereunder.
5. Certain Terminations of Employment.
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5.1 Termination for Cause; Voluntary Termination of Employment by
the Executive
(a) For purposes of this Agreement, "Cause" shall mean the
Executive's:
(i) commission of a felony, or commission of any other crime that
involves dishonesty or breach of trust,
(ii) violation involving dishonesty, breach of trust or bad faith
of any statute, regulation or rule in the areas of commodities
or securities regulation that results in sanctions against the
Executive or the Company;
(iii) deliberate misconduct, willful dereliction of duty, fraud,
misappropriation or embezzlement;
(iv) failure to devote substantially all of his business time and
efforts to the Company and failure to cure such breach within
ten business days following the Executive's receipt of written
notice from the Company specifying such breach;
(v) material breach of any of the provisions of Section 6; or
(vi) breach in any material respect of the terms and provisions of
this Agreement and failure to cure such breach within ten
business days following the Executive's receipt of written
notice from the Company specifying such breach;
provided, that any termination pursuant to clauses (iv) through (vi) above
must be by written notice given to the Executive not more than 90 days
following (x) the occurrence of any of the events described in clauses
(iv) through (vi) above or (y) if later and arising out of the Executive's
bad faith, willful misconduct or dishonesty, the Board's knowledge
thereof.
(b) The Company may terminate the Executive's employment hereunder
for Cause at any time.
(c) The Executive may terminate his employment, for Good Reason or
otherwise, on at least 30 days' and not more than 60 days' written notice given
to the Company. For purposes of this Agreement, "Good Reason" shall mean:
(i) relocation by the Company of the Executive's principal
place of employment by more than 50 miles; or
(ii) a material breach by the Company of the terms of this
Agreement and failure to cure such breach within ten business
days following the Company's receipt of written notice from
the Executive specifying such breach.
(d) If the Company terminates the Executive for Cause, or upon any
other termination not covered by Section 4 or Section 5.2 (including voluntary
termination by the Executive other than for Good Reason), (i) the Executive
shall be entitled to receive Annual Salary and other benefits (but, in all
events, and without increasing the Executive's rights under any other provision
hereof, excluding any bonuses not yet paid) earned and accrued under this
Agreement prior to the termination of employment (and reimbursement under this
Agreement for expenses incurred prior to the termination of employment); and
(ii) the Executive shall have no further rights to any other compensation or
benefits hereunder on or after the termination of employment, or any other
rights hereunder.
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5.2 Termination by the Company without Cause; Termination by the
Executive for Good Reason.
(a) The Company may terminate the Executive's employment at any time
for any reason or no reason. If the Company terminates the Executive's
employment (including by giving notice of non-renewal of the Term pursuant to
Section 1) other than for Cause, or if the Executive terminates his employment
for Good Reason in accordance with Section 5.1(c), and in either such case the
termination is not covered by Section 4, (i) the Executive shall receive Annual
Salary and other benefits earned and accrued under this Agreement prior to the
termination of employment (and reimbursement under this Agreement for expenses
incurred prior to the termination of employment); (ii) the Executive shall
receive (A) a cash payment equal to 200% of the sum of (x) the Executive's
Annual Salary and (y) the Executive's minimum Annual Bonus and of this cash
payment, one-third will be payable within five business days after the date of
termination; one-third will be payable in equal bi-weekly installments through
the applicable Restricted Period; and one-third will be payable within five
business days following the end of the applicable Restricted Period; (B) if the
termination occurs prior to December 31, 2003 and at a time when no Option
described in Section 3.4 has been granted, a prorated amount of the bonus
described in Section 3.2(b) (such proration to be based on a fraction, the
numerator of which shall be the number of months elapsed from July 1, 2000
through the date of termination and the denominator of which shall be 41 (the
number of months from July 1, 2000 through December 2003)); and (C) for a period
equal to the shortest of (i) twelve months after termination of employment, (ii)
until the Executive commences full-time employment and then or subsequently
receives health insurance benefits or (iii) until 90 days after the Executive
commences full-time employment, such continuing coverage under the group health
plans as the Executive would have received under this Agreement (and at such
costs to the Executive) as would have applied in the absence of such
termination; (iii) all outstanding unvested options held by the Executive shall
vest and become immediately exercisable, and the Executive shall become fully
vested in any pension or other deferred compensation other than pension or
deferred compensation under a plan intended to be qualified under Section 401(a)
or 403(a) of the Internal Revenue Code of 1986, as amended; and (iv) the
Executive shall have no further rights to any other compensation or benefits
hereunder on or after the termination of employment, or any other rights
hereunder.
(b) Nothing herein shall restrict the ability of the Company to
amend or terminate the plans and programs referred to in Section 5.2(a)(ii)(C)
from time to time in its sole discretion, and the Company shall in no event be
required to provide any benefits otherwise required by such clause 5.2(a)(ii)(C)
after such time as the Executive becomes entitled to receive benefits of the
same type from another employer or recipient of the Executive's services (such
entitlement being determined without regard to any individual waivers or other
similar arrangements). The Executive's right to the payments and other benefits
described in this Section 5.2 is conditioned on his continued compliance with
the provisions of Section 6, whether or not those provisions otherwise are
enforceable.
5.3 Right to Payments Unaffected by Subsequent Employment. Except as
otherwise expressly provided in this Agreement (including in Section
5.2(a)(ii)(C)) the Executive's rights to the payments and other benefits
described in Section 5.2 shall not be affected by the commencement of other
employment or by any delay or failure in seeking other employment.
6. Covenants of the Executive.
6.1 Covenant Against Competition; Other Covenants. The Executive
acknowledges that (i) the principal business of the Company (which expressly
includes for purposes of this Section 6, its successors and assigns, any holding
or parent company and the direct and indirect subsidiaries of the Company, its
successors and assigns and any such holding or parent company) is the operation
of a
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commodities exchange for the trading of futures and options contracts, risk
management or other derivative instruments on commodities in the energy and
metals sectors (such business, together with the trading of any other futures or
options contracts that may in the future, during the pendency of executive's
employment, be listed by the Company or any entity that is then an affiliate of
the Company, herein being collectively referred to as the "Business"); (ii) the
Company is one of the limited number of entities that have developed such a
business; (iii) the Company's Business is, in part, national in scope; (iv) the
Executive's work for the Company has given and will continue to give him access
to certain confidential, proprietary information of the Company; (v) the
covenants and agreements of the Executive contained in this Section 6 are
essential to the business and goodwill of the Company; and (vi) the Company
would not have entered into this Agreement but for the covenants and agreements
set forth in this Section 6. Accordingly, the Executive covenants and agrees
that:
(a) By and in consideration of the salary and benefits to be
provided by the Company hereunder, including the severance arrangements set
forth herein, and further in consideration of the Executive's exposure to the
proprietary information of the Company, the Executive covenants and agrees that,
during the applicable Restricted Period (as hereinafter defined), he shall not
in the continental United States, directly or indirectly, (i) engage in any
material element of the Business, (ii) render any services to any person,
corporation, partnership or other entity (other than the Company or its
affiliates) engaged in any material element of the Business, or (iii) become
interested in any such person, corporation, partnership or other entity (other
than the Company or its affiliates) as a partner, shareholder, principal, agent,
employee, consultant or in any other relationship or capacity; provided,
however, that, notwithstanding the foregoing, the Executive may invest in
securities of any entity, solely for investment purposes and without
participating directly in the business thereof, if (A) such securities are
traded on any national securities exchange or the National Association of
Securities Dealers, Inc. Automated Quotation System, (B) the Executive is not a
controlling person of, or a member of a group which controls, such entity and
(C) the Executive does not, directly or indirectly, own 1% or more of any class
of securities of such entity. As used in this Agreement, the "Restricted Period"
means the period beginning on the date of this Agreement and ending (x) if the
Executive's employment is terminated by the Company for Cause, six months after
the date of termination; (y) if the Executive's employment is terminated
voluntarily by him other than for Good Reason, nine months after the date of
termination; provided, however, starting July 1, 2002 and thereafter through the
term of the Agreement, if the Executive's employment is terminated voluntarily
by him, and not for Good Reason, three months after the date of termination; and
(z) if the Executive's employment is terminated by the Company without Cause, or
by the Executive for Good Reason, one year after the date of termination.
(b) From the date hereof and for a period of two years after the
termination of the Executive's employment with the Company, the Executive shall
keep secret and retain in strictest confidence, and shall not use for his
benefit or the benefit of others, except in connection with the business and
affairs of the Company and its affiliates, all confidential matters relating to
the Company's Business and the business of any of its affiliates and to the
Company and any of its affiliates, learned by the Executive heretofore or
hereafter directly or indirectly from the Company or any of its affiliates (the
"Confidential Company Information"), and shall not disclose such Confidential
Company Information to anyone outside of the Company except with the Company's
express written consent and except for Confidential Company Information which is
at the time of receipt or thereafter becomes publicly known through no wrongful
act of the Executive or is received from a third party not under an obligation
to keep such information confidential and without breach of this Agreement.
(c) From the date hereof and for a period of one year after the
termination of the Executive's employment with the Company, the Executive shall
not, without the Company's prior written consent, directly or indirectly, (i)
solicit or encourage to leave the employment or other service of the Company, or
any of its affiliates, any employee or independent contractor thereof or (ii)
hire (on behalf of
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the Executive or any other person or entity) any employee or independent
contractor who has left the employment or other service of the Company or any of
its affiliates within the one-year period which follows the termination of such
employee's or independent contractor's employment or other service with the
Company and its affiliates. From the date hereof and for a period of one year
after the termination of the Executive's employment with the Company, the
Executive will not, whether for his own account or for the account of any other
person, firm, corporation or other business organization, intentionally
interfere with the Company's or any of its affiliates' relationship with, or
endeavor to entice away from the Company or any of its affiliates, any person
who during the Term is or was a customer or client of the Company or any of its
affiliates. During the Restricted Period, the Executive shall not publish any
statement or make any statement under circumstances reasonably likely to become
public that is critical of the Company or any of its affiliates, or in any way
adversely affecting or otherwise maligning the Business or reputation of the
Company or any of its affiliates.
(d) All memoranda, notes, lists, records, property and any other
tangible product and documents (and all copies thereof), whether visually
perceptible, machine-readable or otherwise, made, produced or compiled by the
Executive or made available to the Executive concerning the business of the
Company or its affiliates, (i) shall at all times be the property of the Company
(and, as applicable, any affiliates) and shall be delivered to the Company at
any time upon its request, and (ii) upon the Executive's termination of
employment, shall be immediately returned to the Company.
6.2 Rights and Remedies upon Breach.
The Executive acknowledges and agrees that any breach by him
of any of the provisions of Section 6.1 (the "Restrictive Covenants") would
result in irreparable injury and harm for which money damages would not provide
an adequate remedy. Therefore, if the Executive breaches, or threatens to commit
a breach of, any of the provisions of Section 6.1, the Company and its
affiliates shall have the following rights and remedies, each of which rights
and remedies shall be independent of the others and severally enforceable, and
all of which rights and remedies shall be in addition to, and not in lieu of,
any other rights and remedies available to the Company and its affiliates under
law or in equity (including, without limitation, the recovery of damages):
(i) The right and remedy to have the Restrictive Covenants
specifically enforced (without the need to prove damages) by any
court having equity jurisdiction, including, without limitation, the
right to an entry against the Executive of restraining orders and
injunctions (preliminary, mandatory, temporary and permanent)
against violations, threatened or actual, and whether or not then
continuing, of such covenants; and
(ii) The right and remedy to require the Executive to account for
and pay over to the Company and its affiliates all compensation,
profits, monies, accruals, increments or other benefits
(collectively, "Benefits") derived or received by him as the
proximate result of any actions constituting a breach of the
Restrictive Covenants, and the Executive shall account for and pay
over such Benefits to the Company and, if applicable, its affected
affiliates.
The Executive agrees that in any action seeking specific performance
or other equitable relief, he will not assert or contend that any of the
provisions of this Section 6 are unreasonable or otherwise unenforceable. The
existence of any claim or cause of action by the Executive, whether predicated
on this Agreement or otherwise, shall not limit the Company's right to enforce
the Restrictive Covenants.
7. Other Provisions.
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7.1 Severability. The Executive acknowledges and agrees that (i) he
has had an opportunity to seek advice of counsel in connection with this
Agreement and (ii) the Restrictive Covenants are reasonable in geographical and
temporal scope and in all other respects. If it is determined that any of the
provisions of this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the provisions of this Agreement shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
7.2 Duration and Scope of Covenants. If any court or other
decision-maker of competent jurisdiction determines that any of the Executive's
covenants contained in this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration or geographical scope of such provision, then, after such determination
has become final and unappealable, the duration or scope of such provision, as
the case may be, shall be reduced so that such provision becomes enforceable
and, in its reduced form, such provision shall then be enforceable and shall be
enforced.
7.3 Enforceability; Jurisdiction. The Company and the Executive
intend to and hereby confer jurisdiction to enforce the Restrictive Covenants
set forth in Section 6 any Federal or State court sitting in the State of New
York. The parties hereby agree to waive any right to a trial by jury for any and
all disputes hereunder (whether or not relating to the Restricted Covenants).
7.4 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, or sent by
certified, registered or express mail, postage prepaid. Any such notice shall be
deemed given when so delivered personally or, if mailed, five days after the
date of deposit in the United States mails as follows:
(i) If to the Company, to:
New York Mercantile Exchange
Xxx Xxxxx Xxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
(ii) If to the Executive, to him at:
00 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Any such person may by notice given in accordance with this Section 7.4 to the
other parties hereto designate another address or person for receipt by such
person of notices hereunder.
7.5 Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, written or oral, with respect thereto.
7.6 Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the parties or, in the case of a waiver,
by the party waiving compliance. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege
nor any single or partial exercise of
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any such right, power or privilege, preclude any other or further exercise
thereof or the exercise of any other such right, power or privilege.
7.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
7.8 Assignment. This Agreement, and the Executive's rights and
obligations hereunder, may not be assigned by the Executive; any purported
assignment by the Executive in violation hereof shall be null and void. In the
event of any sale, transfer or other disposition of all or substantially all of
the Company's assets or business, whether by merger, consolidation or otherwise,
the Company may assign this Agreement and its rights hereunder.
7.9 Withholding. The Company shall be entitled to withhold from any
payments or deemed payments any amount of tax withholding it determines to be
required by law.
7.10 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors, permitted
assigns, heirs, executors and legal representatives.
7.11 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original but all such counterparts together shall constitute one and
the same instrument. Each counterpart may consist of two copies hereof, each
signed by one of the parties hereto.
7.12 Survival. Anything contained in this Agreement to the contrary
notwithstanding, the provisions of Sections 6, 7.3 and 7.9, and the other
provisions of this Section 7 (to the extent necessary to effectuate the survival
of Sections 6, 7.3 and 7.9), shall survive termination of this Agreement and any
termination of the Executive's employment hereunder.
7.13 Existing Agreements. The Executive represents to the Company
that he is not subject or a party to any employment or consulting agreement,
non-competition covenant or other agreement, covenant or understanding which
might prohibit him from executing this Agreement or limit his ability to fulfill
his responsibilities hereunder.
7.14 Headings. The headings in this Agreement are for reference only
and shall not affect the interpretation of this Agreement.
7.15 Parachutes. If all, or any portion, of the payments provided
under this Agreement, either alone or together with other payments and benefits
which the Executive receives or is entitled to receive from the Company or an
affiliate, would constitute an excess "parachute payment" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), the
payments and benefits provided under this Agreement shall be reduced to the
extent necessary so that no portion thereof shall fail to be tax-deductible
under Section 280G of the Code
7.16 Costs of Litigation. In any legal proceeding brought for
enforcement or interpretation of this Agreement, each party shall bear its own
costs and expenses, including legal fees and expenses incurred in the
proceeding, and the costs of investigation and preparation.
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IN WITNESS WHEREOF, the parties hereto have signed their names as of the day and
year first above written.
NEW YORK MERCANTILE EXCHANGE
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxx
Chairman
EXECUTIVE
/s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx
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