Exhibit 10.14
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of March 31, 2003, by and between NYMEX
HOLDINGS, INC. and NEW YORK MERCANTILE EXCHANGE, INC, which have their
principal place of business at Xxx Xxxxx Xxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(collectively, the "Company"), and XXXXXX XXXX (the "Executive").
WHEREAS, the parties wish to state 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 March 31, 2003 and
ending on March 30, 2006, 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 Chief Information Officer 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. Company acknowledges that Executive shall continue to be
employed by TGFIN Holdings, Inc. and XxxxxxXxxx.xxx as a non-executive Chairman
for a limited period in order to effect any outstanding administrative issues
and shall continue to serve on the board of directors of TGFIN Holdings, Inc.
and XxxxxxXxxx.xxx for a limited period.
3. Compensation.
3.1 Salary. The Company shall pay the Executive during the Term a
salary at the rate of $360,000 per year (the "Annual Salary"). For each
Extension Term, the Annual Salary shall be equal to the product of (x)
$360,000, 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 $100,000 per year. The Executive's minimum bonus
entitlement for the year ending December 31, 2003 shall be $100,000 and shall
not be prorated. The Executive's minimum bonus entitlement for the 1/1/06 to
3/31/06 period shall be $25,000.
(b) The Annual Bonus shall be deemed first earned an 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 a maximum of $4,000 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 a maximum of $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.
(c) the Executive shall be entitled to such vacation and other
leave policies which shall be comparable to that applicable to other officers
and executives of the Company of comparable position.
3.4 Grant of Option.
(a) In the future, the Company may seek to pursue an initial public
offering (or private placement) of equity securities. The Executive acknowledges
that an initial public offering (or private placement) might not be completed,
and the Company has not promised that either will in fact occur. The Company
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 an initial public offering or
private placement of its equity securities, effective not later than the closing
of the initial public offering or
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private placement, the Executive shall be granted an option (the "Option"),
subject to such 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
position.
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.
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) conviction of a felony, or conviction 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 in accordance with 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;
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(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.
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; and (B) 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
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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)(B)
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)(B)
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.
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 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. Notwithstanding
the foregoing, this provision shall not preclude Executive during the applicable
Restricted Period from being employed as a trader (except to the extent that the
entity on whose behalf Executive traded would be engaged in the Business). 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;
and (y) if the Executive's employment is terminated voluntarily by him, by
Executive for Good Reason or if the Executive's employment is terminated by the
Company without Cause, one year after the date of termination.
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(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 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
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injunctions (preliminary, mandatory, temporary and permanent) against
violations, threatened or actual; 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 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.
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
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(ii) If to the Executive, to him at:
x/x Xxxxxxx Xxxxxx, Xxx.
Sachs, Sax & Xxxxx, P.A.
Northern Trust Plaza, Suite 4150
000 Xxxxxx Xxxx
Xxxx Xxxxx, XX 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 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 Section 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
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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.
NYMEX HOLDINGS, INC.
By: /s/ J. Xxxxxx Xxxxxxx, Jr.
-------------------------------------
J. Xxxxxx Xxxxxxx, Jr., President
NEW YORK MERCANTILE EXCHANGE, INC.
By: /s/ J. Xxxxxx Xxxxxxx, Jr.
-------------------------------------
J. Xxxxxx Xxxxxxx, Jr., President
EXECUTIVE
/s/ Xxxxxx Xxxx
----------------------------------------
Xxxxxx Xxxx
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