Exhibit 10.11
Chicago Mercantile Exchange Inc.
Registration Statement on Form S-4
EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement") is entered into by and between the
CHICAGO MERCANTILE EXCHANGE ("CME") and XXXXXXXXX XXXX ("Xxxx").
WHEREAS, the parties desire to enter into this Agreement pertaining to the
employment of Xxxx by the CME.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth below, the parties hereby agree as follows:
1. Employment. Subject to the terms of this Agreement, the CME hereby
agrees to employ Xxxx during the Agreement Term as President, CME Clearing
House, and Xxxx hereby accepts such employment. Xxxx shall report directly to
the Senior Executive Vice President, Planning and Development, ("SEVP"). As
President, CME Clearing House, Xxxx shall have overall responsibility for the
Clearing House Division and such other duties as may be assigned to him by the
SEVP, President or Board of Directors of the CME. These duties may be changed
from time-to-time as determined by the SEVP, President or Board of Directors of
the CME, provided that any such duties shall be consistent with the position of
President, CME Clearing House. During his employment, Xxxx agrees to devote his
full time, energies and talents to serving as President, CME Clearing House, and
to perform his duties faithfully, efficiently and in good faith, subject to
the direction of the SEVP, President or Board of Directors of the CME.
2. Agreement Term. The Agreement Term shall be for a term ending on August
31, 2001. Unless renewed by the mutual written agreement of the parties, this
Agreement will automatically terminate upon the expiration of the Agreement
Term. The CME will give Xxxx written notice of its intention to renew or not
renew or to renegotiate the terms of the Agreement at least sixty (60) days
prior to expiration. In the absence of renewal, upon expiration of this
Agreement, Xxxx shall be an employee of the CME working without a contract.
3. Compensation. During the Agreement Term and while employed by the CME,
the CME shall compensate Xxxx as follows:
a. Base Salary. Xxxx shall be paid an annual base salary of $400,000,
payable in equal biweekly installments. Annual increases, if any, shall be as
determined by the CME in accordance with its policies and practices with respect
to executive compensation.
b. Benefits. Subject to their terms, Xxxx and any of his eligible
dependents shall be entitled to participate in all fringe benefits and benefit
plans of the CME under the same terms and conditions as are generally applicable
to the employees and officers of the CME as those fringe benefits and benefit
plans currently exist and/or as they may be amended from time to time during the
Agreement Term.
c. Bonus. Subject to its terms, Xxxx shall participate in the CME's
discretionary bonus program.
4. Termination. Xxxx'x employment with the CME during the Agreement Term
may be terminated only under the following circumstances:
a. Death. Xxxx'x employment hereunder will terminate upon his death.
b. Disability. If Xxxx is disabled, and received benefits under the CME's
long term disability insurance program, the obligations under this Agreement
shall be suspended for the duration of such disability. In the event Xxxx
returns to the position set forth herein during the term of this Agreement, the
provisions of this Agreement shall be reinstated. In the event Xxxx returns to
work in a different position, or does not return to work at all upon conclusion
of his disability, this Agreement shall be deemed terminated.
c. Cause. Xxxx'x employment hereunder may be immediately terminated by the
CME for cause. For purposes of this Agreement, "cause" shall be defined as
misconduct, incompetence, failure to perform and/or neglect of duties which is
gross or willful, and shall include actions by
Xxxx which occur outside of the CME which would have a substantial likelihood of
bringing significant discredit upon the CME.
d. Termination by Xxxx. This Agreement may be terminated by Xxxx at any
time and for any reason by the giving of at least sixty (60) days advance
written notice of same to the CME.
5. Payments Upon Termination or Expiration.
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a. In the event of termination of Xxxx pursuant to Paragraphs 4a or 4b of
this Agreement, the CME shall for a period of six (6) months following such
termination continue Xxxx'x base salary (or pay same to his estate).
b. In the event of termination of Xxxx by the CME pursuant to Paragraph 4c
of this Agreement, or upon expiration of the Agreement Term, the CME shall pay
to Xxxx only any accrued, but unused, vacation pay.
c. In the event Xxxx terminates this Agreement pursuant to Paragraph 4d
herein with less than the sixty (60) days advance written notice of same, the
parties acknowledge that the CME will be damaged thereby, but that such damages
will be difficult to calculate. Accordingly, Xxxx will promptly pay to the CME,
or allow set off against any monies it may then owe to Xxxx, as liquidated
damages a sum equal to his base salary, computed daily, for each day his notice
of termination under Paragraph 4d is less than sixty (60) days.
6. Confidentiality. Xxxx acknowledges that in his employment he is or will
be making use of, acquiring or adding to the CME's Confidential Information
which includes (but is not limited to) memoranda and other materials or records
of a proprietary nature; technical data, records and policy matters relating to
new business development, research, strategy, finance, accounting, marketing,
personnel, clearing, management, and operations. Therefore, in order to protect
such Confidential Information and to protect other employees who depend on the
CME for regular employment, Xxxx agrees that he will not during or after the
term of his employment in any way
utilize any of said Confidential Information, except in connection with his
employment by the CME, and he will not copy, reproduce, or take with him the
original or any copies of said Confidential Information and he will not disclose
any of said Confidential Information to anyone. Further, Xxxx agrees to advise
any new employer of the terms of this Agreement regarding Confidential
Information. These restrictions regarding Confidential Information shall be in
addition to those which exist at common law or by statute.
7. Arbitration; Equitable Remedies.
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Any controversy or claim arising out of or relating to this Agreement or
the validity, interpretation, enforceability or breach thereof, which is not
settled by agreement of the parties, shall be settled by arbitration conducted
in the City of Chicago, in accordance with the Rules of the American Arbitration
Association, and judgment upon the award rendered in such arbitration may be
entered in any court having jurisdiction. The arbitration shall be conducted
before a single arbitrator selected by the parties. In the event the parties
cannot agree on an arbitrator, then the Association will supply both parties
with a list of seven names. The parties will alternatively strike one name until
only one remains. First choice will be determined by a coin toss, the winning
party having the option of striking first. All expenses of arbitration shall be
borne equally by the parties, except for attorneys' fees which shall be borne
entirely by each party. The arbitrator shall have no power to amend, alter, add
to or delete from this Agreement.
Xxxx acknowledges that the CME would be irreparably injured by a violation
of Paragraph 6 and he agrees that the CME, in addition to any other remedies
available to it for such breach or threatened breach, shall be entitled to a
preliminary injunction, temporary restraining order, or other equivalent relief,
restraining Xxxx from any actual or threatened breach of Paragraph 6 pending and
in aid of arbitration of the dispute. If a bond is required to be posted in
order for the
CME to secure an injunction or other equitable remedy, the parties agree that
such bond need not be more than a nominal sum.
8. Return of Property. Upon his last day of active work, Xxxx xxxxxx agrees
to immediately turn over to the CME any keys, credit cards, passes, and all
notes, memoranda, records, documents, computer disks, and all other information,
no matter how produced or reproduced, kept by Xxxx or in his possession or
control, used in or pertaining to the business of the CME, it being hereby
acknowledged that all of said items are the sole and exclusive property of the
CME.
9. Defense of Claims. During the period of his employment by the CME, and
for periods after the termination of his employment, Xxxx shall reasonably
cooperate with the CME at its request in the defense or prosecution of any claim
that may be made by or against the CME. Such cooperation shall include, without
limitation, serving as a witness at trial or hearing, being deposed, and
preparation for same. For the period after Xxxx terminates his employment with
the CME, the CME shall reimburse Xxxx for all reasonable expenses in connection
therewith, including travel expenses, and shall compensate him at a daily rate
equal to his annual base salary on the date his employment with the CME
terminates, divided by 260, with days used for preparation travel and other
related matters being included for purposes of determining the compensation due
to Xxxx. 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 CME
shall provide Xxxx with notice at least ten days prior to the date on which any
such travel is required.
10. Nonalienation. The interests of Xxxx under this Agreement are not
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors of Xxxx or Xxxx'x
beneficiaries.
11. Amendment. This Agreement may be amended or cancelled only by the
subsequent mutual written agreement of the parties.
12. Applicable Law. The provisions of this Agreement shall be construed in
accordance with the laws of the State of Illinois, without regard to the
conflict of law provisions of any state.
13. Waiver of Breach. No waiver of any party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party or any similar or dissimilar provisions and conditions at the same or any
prior or subsequent time. The failure of any party hereto to take any action by
reason of such breach will not deprive such party of the right to take action at
any time while such breach continues.
14. Notices. Notices and all other communications provided for in this
Agreement shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid, or sent
by facsimile or prepaid overnight courier to the parties at, respectively, the
business address of the CME in care of its President and the home address of
Xxxx (or to Xxxx at the business address of the CME if Xxxx is employed there at
the time of such notice). Such notices and other communications shall be deemed
given:
a. in the case of delivery by overnight service with guaranteed next day
delivery, the next day or the day designated for delivery;
b. in the case of certified or registered U.S. mail, five days after
deposit in the U.S. mail; or
c. in the case of facsimile, the date upon which the transmitting party
received confirmation of receipt by facsimile, telephone or otherwise;
provided, however, that in no event shall any such communications be deemed to
be given later than the date they are actually received.
15. Severability. If any provision, section, subsection or other portion of
this Agreement shall be determined by any court of competent jurisdiction to be
invalid, illegal or unenforceable in whole or in part, and such determination
shall become final, such provision or portion shall be deemed to be severed or
limited, but only to the extent required to render the remaining provisions and
portions of this Agreement enforceable. This Agreement as thus amended shall be
enforced so as to give effect to the intention of the parties insofar as that is
possible. In addition, the parties hereby expressly empower a court of competent
jurisdiction to modify any term or provision of this Agreement to the extent
necessary to comply with existing law and to enforce this Agreement as modified.
16. Survival of Agreement; Successors. Except as otherwise expressly
provided in this Agreement, the rights and obligations of the parties to this
Agreement shall survive the termination of Xxxx'x employment with the CME. In
the event of a merger, sale, reorganization or other change of control, this
Agreement shall be binding upon and inure to the benefit of any successor of the
CME.
17. Entire Agreement. This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes all
prior and contemporaneous agreements, if any, between the parties relating to
the subject matter hereof.
18. Counterparts. This Agreement may be signed in multiple counterparts,
each of which shall be deemed to be an original for all purposes.
19. Acknowledgement by Xxxx. Xxxx represents that he is knowledgeable and
sophisticated as to business matters, including the subject matter of this
Agreement, that he has read this Agreement and that he understands its terms.
Xxxx acknowledges that, prior to assenting
to the terms of this Agreement, he has been given a reasonable time to review
it, to consult with counsel of his choice, and to negotiate at arm's length with
the CME as to the contents. Xxxx and the CME agree that the language used in
this Agreement is the language chosen by the parties to express their mutual
intent, and that no rule of strict construction is to be applied against any
party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date(s)
set forth below.
CHICAGO MERCANTILE EXCHANGE
By /s/ Xxxxxx X. Xxxxx
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Title EVP & COO
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Date 9-1-99
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/s/ Xxxxxxxxx Xxxx
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Xxxxxxxxx Xxxx
Date 9/8/99
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