Employment Agreement - NASDAQ Stock Market Inc. and Richard G. Ketchum
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made and entered into effective as of
December 29, 2000 by and between The Nasdaq Stock Market, Inc. (the
"Company") and Richard G. Ketchum (the "Executive").
WHEREAS, the Company desires to continue to employ the Executive
and to enter into an agreement embodying the terms of such employment and
considers it essential to its best interests and the best interests of its
stockholders to foster the continued employment of the Executive by the
Company during the term of the Agreement;
WHEREAS, the Executive desires to accept such employment and enter
into such an agreement; and
WHEREAS, the Executive is willing to accept employment on the
terms hereinafter set forth in this agreement (the "Agreement").
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein and for other good and valuable consideration, the parties
hereby agree as follows:
1. Term of Employment. Subject to Section 9, the term of the
Executive's employment under this Agreement shall commence on December 30,
2000 (the "Effective Date") and shall end on December 31, 2003; provided
however, that such term shall be automatically extend for additional one
year (1) year periods unless, not later than six (6) months prior to the
expiration of the initial period (or any extension thereof pursuant to this
Section 1), either party hereto shall provide written notice of its or his
desire not to extend the term hereof to the other party hereto (the initial
period together with each one-year extension shall be referred to
hereinafter as the "Employment Term").
2. Position.
(a) The Executive shall serve as the Company's President. In such
position, the Executive shall have such duties and authority as shall be
determined from time to time by the Board of Directors of the Company (the
"Board") or the Chief Executive Officer (the "CEO") of the Company or it or
his designee. During the Employment Term, the Executive shall devote his
full time and best efforts to his duties hereunder; provided however, that
nothing in this Agreement shall preclude the Executive from (i) engaging in
personal activitiesinvolving charitable, community, educational, religious
or similar organizations, (ii) managing his personal investments and
affairs to the extent that such activities are not in any manner
inconsistent with or in conflict with the performance of the Executive's
duties hereunder and (iii) continuing to serve as a member of the board of
directors or board of advisors of the entities set out on Schedule A
annexed hereto. Pursuant to the Company's Code of Conduct, the Executive
shall be required to: (i) disclose to the Audit Committee the names of the
board of directors on which he currently serves and (ii) obtain prior
approval form the Audit Committee for service as a new director of any
publicly traded company. The Executive agrees to accept the final Audit
Committee decision on the suitability of all present and future
directorships as binding.
3. Base Salary. During the Employment Term, the Company shall pay
the Executive annual base salary (the "Base Salary") at the annual rate no
less than the rate of base salary in effect as of the Effective Date. Base
Salary shall be payable in regular installments in accordance with the
Company's usual payroll practices. The Management Compensation Committee of
the Board (the "Compensation Committee") shall review Base Salary for the
purpose of increasing it in accordance with its normal review procedures.
4. Incentive Compensation/Bonus. With respect to each calendar
year during the Employment Term the Company shall pay to the Executive such
incentive compensation (hereinafter the "Incentive Compensation") as the
Compensation Committee may award in its discretion, with a guarantee of
100% of Base Salary determined as of the December 31st of the preceding
year for each of the 2001, 2002 and 2003 calendar years. Incentive
Compensation shall be pro rated for any employment during a calendar year
of less than twelve (12) months (determined by the ratio that the number
days for which the Executive was employed during a calendar year bears to
365). Incentive Compensation for each calendar year shall be paid at the
same time as the Company pays Incentive Compensation awards to other
executives, but in no event later than the March 1st following the calendar
year with respect to which the Incentive Compensation relates.
5. Employee Benefits.
(a) Employee Benefits-Generally. During the Employment Term,
the Executive shall be provided with benefits on the same basis as benefits
are generally made available to other senior executives of the Company,
including without limitation, medical, dental, vision, disability, life
insurance and pension benefits. The Executive shall be entitled to four (4)
weeks paid vacation.
(b) SERP Enhancements. The Executive shall be entitled to
continue to participate in the NASD Supplemental Executive Retirement Plan
(the "SERP"). Notwithstanding any term or condition contained in the SERP
to the contrary:
(i) Section 4.1 of the SERP shall be applied as if the age and
service requirements stated therein were age 53 and five (5) years of
service rather than age 55 and ten (10) years of service. Accordingly,
the Executive shall be 100% vested in his accrued SERP benefit upon
the later of his attainment of age 53 while employed and his
completion of five (5) years of service.
(ii) Section 4.1 of the SERP shall be applied as if the age
and service requirements stated therein were satisfied upon the
Executive's termination of employment prior to the end of the
Employment Term (x) on account of his death or Disability (as defined
in Section 9(b) hereof), (y) by the Company without Cause pursuant to
Section 9(c) hereof, or (z) by the Executive for Good Reason pursuant
to Section 9(c) hereof. Accordingly, under such circumstances the
Executive shall be 100% vested in his SERP benefit even if his
employment terminates prior to his attaining age 53 and having
completed five (5) years of service with the Company.
(iii) The death benefit provided in Section 5.1 of the SERP
shall become payable if the Executive dies before his SERP benefit
commences, but after having satisfied the requirements of Section 4.1
of the SERP as modified by Section 5(b)(i) or (ii) (and if the
foregoing conditions are satisfied, such death benefit will be payable
even if the Executive's death occurs after he has left employment with
vested SERP rights, but before the SERP benefit commences).
(iv) Section 4.3 of the SERP (relating to early retirement)
shall be applied as if the service requirement stated therein were
five (5) years of service rather than ten (10) years of service;
provided, that this special rule shall not permit the Executive's SERP
benefit to start earlier than age 55. By way of example, if the
Executive's employment terminates at age 54 after having completed at
least 5 years of service, his accrued SERP benefit may be paid to him
no earlier than his attainment of age 55, in accordance with Section
4.3 of the SERP.
(v) The special provisions of this Section 5(b) shall not
accelerate the rate at which the SERP benefit accrues so that the
amount of the accrued SERP benefit shall be determined with reference
to an accrual over a period of 3,650 days as provided in Section
4.2(a) of the SERP.
6. Equity. The Executive shall be granted pursuant to The Nasdaq
Stock Market, Inc. Equity Compensation Plan (the "Stock Plan") which has
been adopted by the Board and may from time to time be amended, options to
purchase shares of the Company's common stock in a number commensurate with
the Executive's title and responsibility (subject to applicable adjustments
pursuant to Section 4(b) of the Stock Plan), with a term of ten (10) years
from the date of grant and an option exercise price equal to fair market
value of the Company's common stock on the date of grant. Such option shall
be subject to all the terms and conditions of the Stock Plan, and a stock
option agreement to be entered into by and between the Company and the
Executive.
7. Fringe Benefits.
(a) Business Expenses. During the Employment Term, reasonable
business expenses incurred by the Executive in the performance of his
duties hereunder shall be reimbursed by the Company in accordance with the
policy established by the Compensation Committee. Accordingly, the
Executive's expenses associated with business travel shall be reimbursed by
the Company in accordance with such policy, and where appropriate the
Executive's spouse shall be permitted to travel with the Executive and the
Executive shall be similarly reimbursed for the cost of his spouse's
travel.
(b) Transportation and Housing.
(i) During the Employment Term, in accordance with the
directives of the Compensation Committee, the Executive shall be
assigned the use of a Company provided automobile and driver in
both Washington, D.C. and New York City during the business week
for personal and business use and at other times as required for
business purposes.
(ii) During the Employment Term, the Company shall provide
the Executive with either (A) financial assistance in purchasing
(or renting) a residence in the New York metropolitan area, (B)
the use of a corporate apartment in New York City or (C) a housing
allowance; provided, however, that with respect to each calendar
year during the Employment Term the provision of benefits
described in this Section 7(b)(ii) (the "Housing Program") shall
not exceed 15% of the sum of the Executive's Base Salary and
Incentive Bonus with respect to such calendar year. All such
benefits provided under the Housing Program shall be subject to
the prior approval and consent of the Board or a Committee,
thereof.1
(c) Legal Fees. The Company shall pay or reimburse the Executive
for his reasonable legal fees and expenses incurred in connection with the
negotiation and execution of this Agreement upon presentation by the
Executive of written invoices or receipts setting forth in reasonable
detail the basis for such legal fees and expenses.
8. Stay Pay. Subject to the Executive's employment with the
Company on August 9, 2002 (the "Stay Pay Date"), the Company shall pay the
Executive an additional bonus equal to two (2) times his Base Salary as in
effect on the Stay Pay Date (the "Stay Pay Bonus"); provided, however, that
the Executive's earlier death or Disability (as defined in Section 9(c)
hereof) while employed or termination pursuant to Section 9(c) hereof shall
also be a Stay Pay Date. The Stay Pay Bonus shall be paid in a lump sum
within 30 business days following the Stay Pay Date. The Company and the
Executive may at the end of initial Employment Term without regard to any
extension thereof pursuant to the last sentence of Section 1 hereof, agree
to an additional stay payment in consideration of the renewal of the
Employment Term at such time.
9. Termination. Notwithstanding any other provision of the
Agreement:
-------------------------
1 The actual form of housing assistance will be worked out with outside
advisers to determine an appropriate package for the Executive
consistent with corporate practice in New York City and the
Executive's individual needs.
(a) For Cause by the Company. The Employment Term and the
Executive's employment hereunder may be terminated by the Company for
"Cause." For purposes of the Agreement, "Cause" shall mean (i) the
Executive's conviction of, or pleading nolo contendere to, a felony, (ii)
the Executive's conviction of, or pleading nolo contendere to, any crime,
whether a felony or misdemeanor, involving the purchase or sale of any
security, mail or wire fraud, theft, embezzlement, moral turpitude or
Company property, (iii) the Executive's gross neglect of his duties
hereunder or (iv) the Executive's willful misconduct in connection with the
performance of his duties hereunder or any other material breach by the
Executive of this Agreement; provided, however that the Executive shall not
be deemed to have been terminated for Cause unless (i) reasonable notice
has been delivered to him setting forth the reasons for the Company's
intention to terminate him for Cause and (ii) a period of thirty (30) days
has elapsed since delivery of such notice. If the Executive is terminated
for Cause, he shall be entitled to receive his Base Salary through the date
of termination. Upon termination of the Executive's employment for Cause
pursuant to this Section 9(a), the Executive shall have no further rights
to any compensation (including any Incentive Compensation or Stay Pay
Bonus) or any other benefits under the Agreement. All other benefits, if
any, due the Executive following the Executive's termination of employment
pursuant to this Section 9(a) shall be determined in accordance with the
plans, policies and practices of the Company.
(b) Disability or Death. The Employment Term and the
Executive's employment hereunder shall terminate upon his death and the
Company may terminate the Executive if he becomes physically or mentally
incapacitated and is therefore unable for a period of 45 consecutive
working days or 75 working days in a six (6) month period to perform his
duties (such incapacity is hereinafter referred to as "Disability"). Any
question as to the existence of the Disability of the Executive as to which
the Executive and the Company cannot agree shall be determined in writing
by a qualified independent physician mutually acceptable to the Executive
and the Company. If the Executive and the Company cannot agree as to a
qualified independent physician, each shall appoint such a physician and
those two physicians shall select a third who shall make such determination
in writing. The determination of Disability made in writing to the Company
and the Executive shall be final and conclusive for all purposes of this
Agreement.
Upon termination of the Executive's employment hereunder for
either Disability or death, the Executive or his estate (as the case may
be) shall be entitled to receive (i) any accrued but unpaid Base Salary
through the end of the month in which such termination occurs, (ii) all
unpaid Base Salary for the remainder of the Employment Term, (iii) all
unpaid Annual Incentive Compensation for the remainder of the Employment
Term, (iv) the Stay Pay Bonus provided by Section 8 hereof if not already
paid and (v) all other current cash obligation of the Company to the
Executive (e.g. unused vacation). All other benefits, if any, due the
Executive following termination pursuant to this Section 9(b) shall be
determined in accordance with the plans, policies and practices of the
Company; provided, however, that the Executive shall not participate in any
other severance plan, policy or program of the Company.
(c) Termination by the Executive for Good Reason or by the
Company without Cause. The Employment Term and the Executive's employment
hereunder may be terminated by the Executive for "Good Reason" as defined
below upon not less than thirty (30) days written notice to the Company.
For purposes of this Agreement "Good Reason" shall mean the Company (i)
reducing the Executive's position, duties, or authority, (ii) failing to
secure the agreement of any successor entity to the Company that the
Executive shall continue in this position without reduction in position,
duties or authority, (iii) committing any other material breach of this
Agreement which is not remedied by the Company (if capable of remedy)
within thirty (30) days after receiving notice thereof from the Executive
or (iv) the Company providing notice of nonrenewal of the Employment Term
in accordance with Section 1 hereof
If the Executive's employment is terminated by the Company without
"Cause" (other than by reason of his Disability or death) or the Executive
terminates this Agreement for Good Reason, the Executive shall be entitled
to receive: (i) any accrued but unpaid Base Salary through the date of such
termination, (ii) the Stay Pay Bonus provided by Section 8 hereof if not
already paid, (iii) all other current cash obligations of the Company to
the Executive (e.g. unused vacation) and (iv) a prorata portion of the
Incentive Compensation due the Executive pursuant to Section 4 and
calculated in accordance with Section 4. In addition, the Executive shall
be entitled to receive his Base Salary and Incentive Compensation through
the later of (i) the balance of the Term or (ii) twenty-four months from
the date of such termination (the "Severance Period"). Such severance shall
be paid in a lump sum within thirty (30) days following the termination
date. The Company shall provide continued health coverage at its expense
for the Severance Period. All other benefits, if any, due the Executive
following termination pursuant to this Section 9(c) shall be determined in
accordance with the plans, policies and practices of the Company; provided,
however, that the Executive shall not participate in any severance plan,
policy or program of the Company.
(d) Termination by the Executive without Good Reason. The
Employment Term and the Executive's employment hereunder may be terminated
by the Executive for any reason upon 60 days notice to the Company. Upon a
termination by the Executive pursuant to this Section 9(d) the Executive
shall be entitled to his Base Salary through the date of such termination.
Upon termination of the Executive pursuant to this Section 9(d), the
Executive shall have no further rights, other than those set forth in this
Section 9(d), to any compensation or any other benefits under the
Agreement. All other benefits, if any, due the Executive following
termination pursuant to this Section 9(d) shall be determined in accordance
with the plans, policies and practices of the Company; provided, however,
that the Executive shall not participate in any severance plan, policy or
program of the Company.
(e) Mitigation/Offset. Following the termination of his
employment under any of the above clauses of this Section 9, the Executive
shall have no obligation or duty to seek subsequent employment or
engagement as an employee (including self employment) or as a consultant or
otherwise mitigate the Company's obligations hereunder; nor shall the
payments provided by this Section 9 be reduced by the compensation earned
by the Executive, as an employee or consultant from such subsequent
employment or consultancy.
(f) Excise Tax Payments.
(i) Gross-Up Payment. If it shall be determined that any
payment or distribution of any type to or in respect of the Executive, by
the Company, or any other person, whether paid or payable or distributed or
distributable pursuant to the terms of the Agreement or otherwise (the
"Total Payments"), is or will be subject to the excise tax imposed by
Section 4999 of the Internal Code of 1986, as amended (the "Code") or any
interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are collectively referred to
as the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes) imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Total Payments.
(ii) Determination by Accountant.
(A) All computations and determinations relevant to this
Section 9(f) shall be made by a national accounting firm selected by the
Company from among the five (5) largest accounting firms in the United
States (the "Accounting Firm") which firm may be the Company's accountants.
Such determinations shall include whether any of the Total Payments are
"parachute payments" (within the meaning of Section 280G of the Code). In
making the initial determination hereunder as to whether a Gross-Up Payment
is required the Accounting Firm shall determine that no Gross-Up Payment is
required, if the Accounting Firm is able to conclude that no "Change of
Control" has occurred (within the meaning of Section 280G of the Code) on
the basis of "substantial authority" (within the meaning of Section 6230 of
the Code) and shall provide opinions to that effect to both the Company and
the Executive. If the Accounting Firm determines that a Gross-Up Payment is
required, the Accounting Firm shall provide its determination (the
"Determination"), together with detailed supporting calculations regarding
the amount of any Gross-Up Payment and any other relevant matter both to
the Company and the Executive by no later than ten (10) days following the
Termination Date, if applicable, or such earlier time as is requested by
the Company or the Executive (if the Executive reasonably believes that any
of the Total Payments may be subject to the Excise Tax). If the Accounting
Firm determines that no Excise Tax is payable by the Executive, it shall
furnish the Executive and the Company with a written statement that such
Accounting Firm has concluded that no Excise Tax is payable (including the
reasons therefor) and that the Executive has substantial authority not to
report any Excise Tax on his federal income tax return.
(B) If a Gross-Up Payment is determined to be payable, it
shall be paid to the Executive within twenty (20) days after the
Determination (and all accompanying calculations and other material
supporting the Determination) is delivered to the Company by the Accounting
Firm. Any determination by the Accounting Firm shall be binding upon the
Company and the Executive, absent manifest error.
(C) As a result of uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments not made
by the Company should have been made ("Underpayment"), or that Gross-Up
Payments will have been made by the Company which should not have been made
("Overpayments"). In either such event, the Accounting Firm shall determine
the amount of the Underpayment or Overpayment that has occurred. In the
case of an Underpayment, the amount of such Underpayment (together with any
interest and penalties payable by the Executive as a result of such
Underpayment) shall be promptly paid by the Company to or for the benefit
of the Executive.
(D) In the case of an Overpayment, the Executive shall, at
the direction and expense of the Company, take such steps as are reasonably
necessary (including the filing of returns and claims for refund), follow
reasonable instructions from, and procedures established by, the Company,
and otherwise reasonably cooperate with the Company to correct such
Overpayment, provided, however, that (i) the Executive shall not in any
event be obligated to return to the Company an amount greater than the net
after-tax portion of the Overpayment that he has retained or has recovered
as a refund from the applicable taxing authorities and (ii) this provision
shall be interpreted in a manner consistent with the intent of Section
9(f)(i), which is to make the Executive whole, on an after-tax basis, from
the application of the Excise Taxes, it being acknowledged and understood
that the correction of an Overpayment may result in the Executive repaying
to the Company an amount which is less than the Overpayment.
(E) The Executive shall notify the Company in writing of
any claim by the Internal Revenue Service relating to the possible
application of the Excise Tax under Section 4999 of the Code to any of the
payments and amounts referred to herein and shall afford the Company, at
its expense, the opportunity to control the defense of such claim.
10. Non-Competition/Confidentiality. (a) The Executive
acknowledges and recognizes the highly competitive nature of the businesses
of the Company and accordingly agrees as follows:
(a) During the Employment Term and for a period of one (1)
year following the earlier of (i) the expiration of the Employment Term and
(ii) the date the Executive ceases to be employed by the Company (the
"Restricted Period"), the Executive will not directly or indirectly, (A)
engage in any "Competitive Business" (as defined below) for the Executive's
own account, (B) enter the employ of, or render any services to, any person
engaged in a Competitive Business, (C) acquire a financial interest in, or
otherwise become actively involved with, any person engaged in a
Competitive Business, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, trustee or consultant, or
(D) interfere with business relationships (whether formed before or after
the date of the Agreement) between the Company and customers or suppliers
of the Company. For purposes of this Agreement Competitive Business shall
mean (i) any national securities exchange registered with the Securities
and Exchange Commission, (ii) Electronic Communications Network or (iii)
any other entity that engages in substantially the same business as the
Company.
(b) Notwithstanding anything to the contrary in the Agreement,
the Executive may, directly or indirectly own, solely as an investment,
securities of any person engaged in the business of the Company which are
publicly traded on a national or regional stock exchange or on the
over-the-counter market if the Executive (A) is not a controlling person
of, or a member of a group which controls, such person and (B) does not,
directly or indirectly, own 5% or more of any class of securities of such
person.
(c) During the Restricted Period, the Executive will not,
directly or indirectly, solicit or encourage to cease to work with the
Company any consultant or employee then under contract or employed by or
with the Company.
(d) The Executive hereby agrees that he will comply with the
Company's general policies regarding confidentiality. Without in any way
limiting the foregoing sentence, the Executive further agrees that he will
not, at any time during or after the Employment Term, make use of or
divulge to any other person, firm or corporation any trade or business
secret, process, method or means, or any other confidential information
concerning the business or policies of the Company, which he may have
learned in connection with his employment. For purposes of this Agreement,
a "trade or business secret, process, method or means, or any other
confidential information" shall mean and include written information
treated as confidential or as a trade secret by the Company. The
Executive's obligation under this Section 10(d) shall not apply to any
information which (i) is known publicly; (ii) is in the public domain or
hereafter enters the public domain without the fault of the Executive;
(iii) is known to the Executive prior to his receipt of such information
from the Company, as evidenced by written records of the Executive or (iv)
is hereafter disclosed to the Executive by a third party not under an
obligation of confidence to the Company. The Executive agrees not to remove
from the premises of the Company, except as an employee of the Company in
pursuit of the business of the Company or except as specifically permitted
in writing by the Board, any document or other object containing or
reflecting any such confidential information. The Executive recognizes that
all such documents and objects, whether developed by him or by someone
else, will be the sole exclusive property of the Company. Except as
specifically authorized by the Board upon termination of his employment
hereunder, the Executive shall forthwith deliver to the Company all such
confidential information, including without limitation all lists of
customers, correspondence, accounts, records and any other documents
(whether or not electronically or digitally produced) or property made or
held by him or under his control in relation to the business or affairs of
the Company, and no copy of any such confidential information shall be
retained by him.
(e) It is expressly understood and agreed that although the
Executive and the Company consider the restrictions contained in this
Section 10 to be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory or any other
restriction contained in the Agreement is an unenforceable restriction
against the Executive, the provisions of the Agreement shall not be
rendered void but shall be deemed amended to apply as to such maximum time
and territory and to such maximum extent as such court may judicially
determine or indicate to be enforceable. Alternatively, if any court of
competent jurisdiction finds that any restriction contained in the
Agreement is unenforceable, and such restriction cannot be amended so as to
make it enforceable, such finding shall not affect the enforceability of
any of the other restrictions contained herein.
11. Nondisparagement. The Executive agrees (whether during or
after the Executive's employment with the Company) not to issue, circulate,
publish or utter any false or disparaging statements, remarks or rumors
about the Company or its shareholders unless giving truthful testimony
under subpoena.
12. Specific Performance. The Executive acknowledges and
agrees that the Company's remedies at law for a breach or threatened breach
of any of the provisions of Section 10 or Section 11 would be inadequate
and, in recognition of this fact, the Executive agrees that, in the event
of such a breach or threatened breach, in addition to any remedies at law,
the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy
which may then he available.
13. Miscellaneous.
(a) Acceptance. The Executive hereby represents that his
performance and execution of the Agreement does not and will not constitute
a breach of any agreement or arrangement to which he is a party or is
otherwise bound, including, without limitation, any noncompetition or
employment agreement.
(b) Governing Law. The Agreement shall be governed by and
construed in accordance with the laws of the State of New York without
regard to conflict of law provisions.
(c) Entire Agreement/Amendments. The Agreement contains
the entire understanding of the parties with respect to the employment of
the Executive by the Company and any and all employment agreement
previously entered into shall be null and void. There are no restrictions,
agreements, promises, warranties, covenants or by and between the Company
and the Executive undertakings between the parties with respect to the
subject matter herein other than those expressly set forth herein. The
Agreement may not be altered, modified, or amended except by written
instrument signed by the parties hereto.
(d) No Waiver. The failure of a party to insist upon
strict adherence to any term of the Agreement on any occasion shall not be
considered a waiver of such party's rights or deprive such party of the
right thereafter to insist upon strict adherence to that term or any other
term of the Agreement.
(e) Severability. In the event that any one or more of the
provisions of the Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions of the Agreement shall not be affected thereby.
(f) Successor/Assignment. The Agreement is confidential
and personal and neither of the parties hereto shall, without the consent
of the other, assign or transfer this Agreement or any rights or
obligations hereunder. Without limiting the foregoing, the Executive's
right to receive payments hereunder shall not be assignable or transerable
whether by pledge, creation of a security interest or otherwise, other than
a transfer by your will or by the laws of descent distribution. In the
event of any attempted assignment or transfer contrary to this paragraph,
the Company shall have no liability to pay the assignee or transferee any
amount so attempted to be assigned or transferred. The Agreement shall be
binding upon any successor of the Company, its assets, or its business,
subsidiaries, affiliates (whether direct or indirect, by purchase, merger,
consolidation or otherwise). In the event that any successor fails to agree
in writing to assume this Agreement prior to the effective date of such
event, then all entitlements in this Agreement cash or otherwise shall be
immediately payable in full by the Company at such time of event
notwithstanding any other provisions in this Agreement to the contrary.
(g) Notice. For the purpose of the Agreement, notices and
all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by
United States registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the execution page of
the Agreement, provided that all notices to the Company shall be directed
to the attention of the Chief Executive Officer or to such other address as
either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only
upon receipt.
(h) Withholding Taxes. The Company may withhold from any
amounts payable under the Agreement such Federal, state and local taxes as
may be required to be withheld pursuant to any applicable law or
regulation.
(i) Counterparts. The Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
[Remainder of this page left intentionally blank.]
IN WITNESS WHEREOF, the parties hereto have duly executed the
Agreement as of the day and year first above written.
EXECUTIVE
/s/ Richard G. Ketchum
----------------------------------------------
Richard G. Ketchum
THE NASDAQ STOCK MARKET INC.
By: /s/ Frank Zarl
----------------------------------------------
Frank Zarl
/s/ Todd A. Robinson
----------------------------------------------
Todd A. Robinson
Chairman, Management Compensation Committee
Schedule A
Board of Directors and
Board of Advisors Membership
Richard G. Ketchum
None