Employment Agreement - NASDAQ Stock Market Inc. and Hardwick Simmons
CONFIDENTIAL
EXECUTION COPY
THE NASDAQ STOCK MARKET, INC.
EMPLOYMENT AGREEMENT
WITH
Hardwick Simmons
THIS AGREEMENT (the "Agreement") made and entered into as
indicated below, by and between The Nasdaq Stock Market, Inc., a
corporation created and existing under and by virtue of the laws of the
State of Delaware, with its offices at 1735 K Street, N.W., Washington, DC
20006, hereinafter called "Nasdaq" and Hardwick Simmons, hereinafter called
"Simmons."
WITNESSETH:
WHEREAS, Nasdaq desires to have the benefits of Simmons'
knowledge and experience as its Chief Executive Officer, and Simmons
desires such employment with Nasdaq, commencing February 1, 2001 (the
"Effective Date").
NOW, THEREFORE, in consideration of the promises, of the sum
of One Dollar ($1.00) by each of the parties in hand to the other paid, and
of the mutual covenants set forth below, Nasdaq and Simmons do hereby
agree, each with the other, that the following shall constitute the
employment agreement covering Simmons:
1. From and after the Effective Date, until this Agreement
expires or is terminated as hereinafter provided, Nasdaq shall employ
Simmons as its Chief Executive Officer, and Simmons shall serve as an
employee of Nasdaq in such capacity. During the period of his employment
hereunder, Simmons shall perform the usual duties to be performed by one
holding the offices of Chief Executive Officer, and Simmons shall perform
such other management duties and responsibilities reasonably related to
such offices as may be assigned to him from time to time by the Board of
Directors of Nasdaq (the "Board").
2. During the Term, Simmons shall devote his full time and
best efforts to his duties hereunder during the period of his employment
under this Agreement; provided, however, that nothing in this Agreement
shall preclude Simmons from (i) engaging in personal activities involving
charitable, community, educational, religious, and similar organizations,
speaking engagements, and similar activities and (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 Simmons'
duties under this Agreement and (iii) continuing to serve as a member of
the Boards of Directors or Boards of Advisors of the entities described on
Schedule A hereto. Pursuant to the Nasdaq Code of Conduct, Simmons will be
required to: (i) disclose to the Audit Committee the names of the Boards of
Directors for which he is currently a member and (ii) obtain prior approval
from the Audit Committee for service as a new director of a publicly traded
company. Simmons agrees to accept the final Audit Committee decision on the
suitability of all present and future directorships as binding.
3. During the Term (as hereinafter defined), Nasdaq shall
pay Simmons for his services hereunder an annual base salary of $750,000
("Base Salary"), which shall be payable during the year on the same
schedule as all other Nasdaq employees. Base Salary shall be reviewed
annually by the Management Compensation Committee of the Board (the
"Compensation Committee").
(a) In addition, Nasdaq shall pay annually Simmons such
incentive compensation (hereinafter the "Incentive Compensation") as the
Compensation Committee may award in its discretion, with a guarantee of
$1,750,000 for the first year of employment. Incentive Compensation for the
second and third years of the Agreement shall be no less than 100% of Base
Salary as of December 31 of the preceding year. Incentive Compensation
shall be pro rated for any employment during any calendar year of less than
twelve months (determined by the ratio that the number of days for which
Simmons was employed in any calendar year bears to 365). Incentive
Compensation for each calendar year shall be paid at the same time as
Nasdaq pays Incentive Compensation awards to other executives, but in no
case later than March 1 of each calendar year with respect to the prior
calendar year, provided, however, that if the Term shall end prior to June
30 of any calendar year, such Incentive Compensation for the calendar year
in which the Term ends shall be paid within 60 days of the last day of
employment.
4. This Agreement shall continue in effect for three (3)
years from the Effective Date, which period shall hereinafter be referred
to as the "Term," subject to earlier termination in one of the following
ways:
(a) This Agreement shall terminate automatically upon
Simmons' death, or upon his being adjudicated incompetent by a court of
competent jurisdiction, or upon Simmons' becoming "Permanently Disabled".
For purposes of this Agreement, "Permanently Disabled" shall mean the
inability of Simmons to perform substantially all of his duties in the
manner required hereunder whether by reason of illness or injury or
otherwise (whether physical or mental) incapacitating Simmons for a
continuous period exceeding 120 days. Such Permanent Disability shall be
certified by a physician chosen by Nasdaq and reasonably acceptable to
Simmons (if he is then able to exercise sound judgement).
(b) Simmons may terminate this Agreement for "Good
Reason" as defined in this Section 4(b), upon not less than thirty (30)
days written notice to Nasdaq. For purposes of this Agreement "Good Reason"
shall mean Nasdaq (i) reducing his position, duties, or authority, (ii)
failing to secure the agreement of any successor entity to Nasdaq that
Simmons shall continue in this position without reduction in position,
duties or authority, or (iii) committing any other material breach of this
Agreement which is not remedied by Nasdaq (if capable of remedy) within
thirty (30) days after receiving notice thereof from Simmons.
(c) Nasdaq may terminate the Agreement for "Cause."
Cause shall mean:
(1) Simmons' conviction of, or pleading nolo
contendere to, a felony;
(2) Simmons' 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, an embezzlement, or moral turpitude or Nasdaq
property;
(3) Simmons' gross neglect of his duties hereunder;
or
(4) Simmons' willful misconduct in connection with
the performance of his duties hereunder or other material breach
by Simmons of this Agreement;
provided however that Simmons shall not be deemed to have been
terminated for Cause unless (i) reasonable notice has been
delivered to him setting forth the reasons for Nasdaq's intention
to terminate him for Cause, and (ii) a period of thirty (30) days
has elapsed since delivery of such notice during which Simmons was
afforded an opportunity to cure, if capable of cure, the reasons
for the Nasdaq's intention to terminate him for Cause.
5. (a) The Term of this Agreement may be extended by written
agreement of Simmons and Nasdaq.
(b) Notwithstanding the foregoing, Simmons shall
relinquish his duties or position of Chief Executive Officer of Nasdaq if,
his successor being duly appointed, Nasdaq and Simmons mutually determine
that such relinquishment may facilitate his successor's transition to such
office: however, neither such relinquishment nor Simmons' relinquishment of
his duties as Chief Executive Officer of Nasdaq shall be considered a
termination of the Term, nor shall such relinquishment be considered Good
Reason for purposes of this Agreement, and shall have no effect on Nasdaq's
obligation to continue to pay and provide Simmons the compensation and
benefits otherwise provided for in this Agreement for the remainder of the
Term. Simmons agrees to make himself available for the balance of the Term
upon reasonable notice to provide consulting services to Nasdaq on matters
relating to the nature and scope of his duties prior to relinquishment of
his duties or positions pursuant to this Paragraph 5.
6. End of the Term.
Upon expiration of the Term, Simmons shall be entitled to
receive a supplemental retirement benefit from Nasdaq equal to the present
value of (i) the benefit he would have accrued under the NASD Supplemental
Executive Retirement Plan (the "NASD Retirement Plan") during the Term if
the full amount of his compensation under Paragraph 3 were taken into
account as compensation under the NASD Retirement Plan (if the limitations
on benefits otherwise applicable under the NASD Retirement Plan by reason
of Section 415 of the Internal Revenue Code were disregarded) and if the
vesting provisions of the NASD Retirement Plan were disregarded; less (ii)
any vested benefit he actually accrued under the NASD Retirement Plan
during the Term. Determination of the present value of such supplemental
retirement benefit shall be made using the actuarial assumptions then
applicable for determining lump sum distribution under the NASD Retirement
Plan (as if such supplemental retirement benefit were paid under the NASD
Retirement Plan). Nasdaq shall pay such supplemental retirement benefit to
Simmons in a lump sum within fifteen (15) days after the expiration of the
Term or at such other time as provided in Paragraph 7 or 8. Except as
otherwise provided in Paragraph 7 or 8, Simmons shall not be entitled to
receive any supplemental retirement benefit under this Paragraph 6 if his
employment with Nasdaq terminates prior to his completion of the Term
(without regard to any extension entered into pursuant to Section 4
hereof).
7. (a) Termination on Account of Death.
If this Agreement is terminated under Paragraph 4(a) by
reason of Simmons' death, Simmons' surviving spouse or Simmons' estate (if
there is no surviving spouse) shall be entitled to receive from Nasdaq at
such time: (i) his Base Salary through the date of death; (ii) a pro-rata
portion of the minimum Incentive Compensation amount described in Paragraph
3(a) through the date of death (determined as set forth in Paragraph 3(a));
(iii) the supplemental retirement benefit described in Paragraph 6 accrued
to the date of death (taking into account the provisions of the NASD
Retirement Plan applicable to a participant's death but disregarding any
portion of the Term following the date of Simmons' death); and (iv) those
benefits which Simmons is entitled to receive under the terms of Nasdaq's
employee benefit plans and arrangements.
(b) Termination on Account of Permanent Disability
If this Agreement is terminated under Paragraph 4(a) by
reason of Simmons' Permanent Disability, Simmons shall be entitled to
receive from Nasdaq at such time: (i) his Base Salary to the date of
termination; (ii) a pro-rata portion of the minimum Incentive Compensation
amount described in Paragraph 3(a) to the date of termination (determined
as set forth in Paragraph 3(a)); (iii) the supplemental retirement benefit
described in Paragraph 6 accrued to the date of termination (taking into
account the provisions of the NASD Retirement Plan applicable to a
participant's Permanent Disability but disregarding any portion of the Term
following the date of Simmons' termination); and (iv) those benefits which
Simmons is entitled to receive under the terms of Nasdaq's employee benefit
plans and arrangements.
8. (a) Termination by Simmons for Good Reason or by Nasdaq
without Cause.
If this Agreement is terminated by Simmons for Good Reason
under Paragraph 4(b), or if this Agreement is terminated by Nasdaq other
than on account of Cause, death, or Permanent Disability, Simmons shall be
entitled to receive from Nasdaq: (i) his annual Base Salary and the minimum
Incentive Compensation amount described in Paragraph 3, expressed as a
monthly amount multiplied by the remaining number of full or partial months
in the Term; (ii) the supplemental retirement benefit described in
Paragraph 6 to which Simmons would have been entitled if he had completed
the Term; and (iii) those benefits which Simmons is entitled to receive
under the terms of Nasdaq's employee benefit plans and arrangements. Any
payments under this paragraph shall be made at the time such payments would
otherwise have been made under this Agreement if Simmons had completed the
Term.
(b) Termination by Simmons other than for Good Reason.
If this Agreement is terminated by Simmons other than for
Good Reason, Simmons shall be entitled to receive from Nasdaq at such time:
(i) his Base Salary to the time of termination; (ii) a pro-rata portion of
the minimum Incentive Compensation amount described in Paragraph 3
(determined as set forth in Paragraph 3); and (iii) those benefits which
Simmons is entitled to receive under the terms of Nasdaq's employee benefit
plans and arrangements.
9. Termination for Cause.
If this Agreement is terminated by Nasdaq for Cause pursuant
to Paragraph 4(c), Simmons shall be entitled to receive from Nasdaq at such
time: (i) his Base Salary through the date of termination; (ii) a pro-rata
portion of the minimum Incentive Compensation amount described in Paragraph
3 (determined as set forth in Paragraph 3); and (iii) those benefits which
Simmons is entitled to receive under the terms of Nasdaq's employee benefit
plans and arrangements.
10. Extension of the Agreement.
If Simmons and Nasdaq agree to extend the Term of this
Agreement pursuant to Paragraph 4, Simmons shall be entitled to receive,
with respect to each additional period of his employment under this
Agreement, a supplemental retirement benefit from Nasdaq equal to the
present value of: (i) the benefit he would have accrued under the NASD
Retirement Plan during such period if the full amount of his compensation
under Paragraph 3 were taken into account as compensation under the NASD
Retirement Plan, if the limitations on benefits otherwise applicable under
the NASD Retirement Plan by reason of Section 415 of the Internal Revenue
Code were disregarded, and if the vesting provisions of the NASD Retirement
Plan were disregarded; less (ii) any vested benefit he actually accrued
under the NASD Retirement Plan during such year. Determination of the
present value of such supplemental retirement benefit shall be made using
the actuarial assumptions then applicable for determining lump sum
distributions under the NASD Retirement Plan (as if such supplemental
retirement benefit was paid under the NASD Retirement Plan). Nasdaq shall
pay such supplemental retirement benefit to Simmons in a lump sum on the
last day of the calendar year in which it was accrued or, in the case of
the last year for which he is employed under this Agreement, the date on
which his employment under this Agreement terminates.
11. Stock Options.
(a) On the Effective Date, Simmons shall be granted
pursuant to the 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, an option to purchase 2,000,000 shares of Nasdaq common stock
(subject to applicable adjustments pursuant to Section 4(b) of the Stock
Plan), with a term of 10 years from the date of grant and an option
exercise price equal to the fair market value of Nasdaq common stock on the
date of grant. Fair market value shall be determined under the terms of the
Stock Plan. Subject to Simmons continued employment with Nasdaq, such
option shall become exercisable (vest) with respect to one-third (1/3) of
the shares underlying the option on each of the first, second, and third
anniversaries of the date of grant. Notwithstanding the foregoing, upon a
Change in Control (as defined in the Stock Plan) the terms set forth in the
Stock Plan shall apply to such option. Such option shall be subject to all
the terms and conditions of the Stock Plan, including, without limitation,
any repurchase rights.
Upon any termination of Simmons' employment hereunder
prior to the end of the Term by Simmons for Good Reason or by Nasdaq
without Cause (and not on account of death or Permanent Disability), such
option to the extent not then vested shall fully vest and shall remain
exercisable through the expiration of its term.
In the event that Simmons is terminated on account of
his death or Permanent Disability, such option to the extent vested shall
remain exercisable for a period of 365 days following such termination.
In the event that Simmons is terminated on account of
Cause, such option shall immediately expire upon such termination without
further consideration to Simmons.
In the event that Simmons' employment hereunder is
terminated by Simmons other than for Good Reason or death prior to the end
of the Term, such option to the extent vested shall expire ninety (90) days
following such termination of employment by Simmons.
In the event that the Term shall end and shall not be
renewed pursuant to Paragraphs 4 and 10, such option shall continue through
the expiration of its term.
12. In connection with his employment under this Agreement,
and to ensure his personal safety, Nasdaq shall reimburse Simmons for the
cost of installing a home security system in his permanent residence (if
recommended by an independent security study); and provided that such
reimbursement shall not exceed $10,000.
13. Upon presentation of appropriate receipts or vouchers in
a manner consistent with the expense substantiation policy of Nasdaq
generally applicable to its executive officers and in accordance with the
provisions of such policy regarding the timing and amount of expense
reimbursements, Nasdaq shall reimburse Simmons and his spouse for
reasonable business-related expenses incurred in connection with his
performance of services under this Agreement and in the interest of
Nasdaq's business, including, but not limited to, expenses for such items
as entertainment, travel, hotels, meals, dues, admission fees, and house
charges of various clubs in New York City, as well as for the travel,
hotel, and meals of his spouse on those occasions (including meetings of
the Board) when the proper representation of Nasdaq makes it advisable for
his spouse to accompany him. In the case of dues and initiation and other
fees for private clubs, the amount of reimbursements under this Paragraph
shall not exceed $20,000 for any year.
14. Nasdaq shall reimburse Simmons for the annual expense he
incurs for personal financial and tax counseling, provided that the amount
of such reimbursement for any year shall not exceed $20,000.
15. Nasdaq shall provide Simmons with the use of an
automobile and, to ensure his personal safety, a driver trained in personal
security (if recommended by an independent security study) with respect to
Simmons' performance of services under this Agreement in New York City.
16. The reimbursements and benefits provided under
paragraphs 11 through 16 shall include such amounts as may be necessary for
Simmons to pay any taxes imposed with respect to such reimbursements or
benefits (which amounts shall be paid to Simmons by January 31 of the
calendar year following the year following the year in which the expenses
were incurred).
17. Nasdaq shall provide Simmons any health, life, or other
disability insurance, pension, retirement, savings, or any other benefit
plan or arrangement now or hereafter maintained by Nasdaq for its senior
executives generally, and Simmons' participation therein shall be in
accordance with the provisions thereof generally applicable to such
executives. Simmons shall receive at least four (4) weeks of paid vacation
per annum.
18. Upon presentation of an invoice, Nasdaq shall reimburse
Simmons for any legal fees and expenses incurred in the negotiation of this
Agreement, provided that the amount of such reimbursement shall not exceed
$20,000.
19. It is understood and agreed that this Agreement shall be
binding upon Nasdaq and Simmons and upon the successors or assigns of
Nasdaq, and shall inure to the benefit of the heirs, executors and
administrators of Simmons.
20. This Agreement shall not be assigned by either Simmons
or Nasdaq except that Nasdaq shall have the right to assign its rights
hereunder to any successor in interest of Nasdaq, provided that such
successor assumes, in writing, all obligations of Nasdaq hereunder. If
assigned to any successor of Nasdaq, all references to Nasdaq shall be read
to refer to such successor.
21. Except as otherwise expressly provided, this Agreement
embodies the entire understanding between Simmons and Nasdaq with respect
to the matter covered herein.
22. In case any one of the provisions contained in this
Agreement should be invalid, illegal, or unenforceable in any respect, the
validity, legality, or enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
23. This Agreement may be executed in any number of
counterparts, each which shall be deemed an original, and all of which
shall constitute one and, the same Agreement.
24. The exclusive procedure for resolution of any dispute
under this Agreement shall be by arbitration in the District of Columbia or
New York City in accordance with the rules then in effect of the American
Arbitration Association (the "AAA"). In the event of any dispute between
Simmons and Nasdaq under this Agreement, which is wholly, or partly
resolved in Simmons's favor, Nasdaq shall reimburse Simmons for reasonable
legal fees and expenses incurred in connection with such dispute.
25. It is understood and agreed that any notice to either
party shall be in writing and shall be sufficiently given if sent to such
party by registered or certified mail, postage prepaid, at the residence or
business address of such party set forth above. Either party hereto may
change the address to which notices shall be sent by written notice of such
new or changed address given to the other party hereto.
26. It is understood and agreed that this Agreement may be
amended by mutual consent of the parties hereto which must be evidences by
a document executed with the same formality as the Agreement.
[remainder of page left intentionally blank]
CONCLUSION
IN WITNESS WHEREOF, the corporate party hereto has caused
the Agreement to be duly executed and delivered on the date indicated
below, and the individual party hereto has executed and delivered this
Agreement on the date indicated below, effective for all purposes as of
_______________, 2000.
The Nasdaq Stock Market, Inc.
Date: _______ By:__________________________
Chairman of the Board
Date: _______ By:__________________________
Chairman of the NASD Management
Compensation Committee
Date: _______ By:__________________________
Hardwick Simmons
SCHEDULE A
Boards of Directors:
Advisory Boards:
AMENDMENT ONE TO THE
EMPLOYMENT AGREEMENT
This Amendment is hereby entered into by and between The
Nasdaq Stock Market, Inc. ("Nasdaq") and Hardwick Simmons ("Simmons")
effective as of February 1, 2001.
WITNESSETH
WHEREAS, Nasdaq and Simmons have entered into on December 7,
2000 a certain employment agreement, to be effective as of February 1, 2001
(the "Employment Agreement"), providing for Simmons' employment with
Nasdaq; and
WHEREAS, Nasdaq and Simmons desire to amend the Employment
Agreement.
NOW THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Paragraph 11 of the Employment Agreement is hereby
amended to read in its entirety as follows:
(a) (i) On the Effective Date, Simmons 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, an option to purchase 1,000,000 shares of Nasdaq common stock
(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 the fair market value of Nasdaq common stock on the
date of grant. Fair market value shall be determined under the terms of the
Stock Plan. Subject to Simmons' continued employment with Nasdaq, such
option shall become exercisable (vest) with respect to one-third (1/3) of
the shares underlying such option on each of the first, second, and third
anniversaries of the Effective Date.
(ii) Subject to Simmons' continued employment with
Nasdaq, on the first anniversary of the Effective Date, Simmons
shall be granted, pursuant to the Stock Plan, an option to
purchase 1,000,000 shares of Nasdaq common stock (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 the fair market value of Nasdaq
common stock on the date of grant. Fair market value shall be
determined under the terms of the Stock Plan. Subject to Simmons'
continued employment with Nasdaq, such option shall become
exercisable (vest) with respect to one-third (1/3) of the shares
underlying such option on the date of grant and on each of the
first and second anniversaries of the date of grant.
(b) Notwithstanding the foregoing upon a Change in Control
(as defined in the Stock Plan) the terms set forth in the Stock Plan shall
apply to the options granted pursuant to both Paragraphs 1 (a)(i) and 1
(a)(ii) hereof (collectively hereinafter the "Option"). The Option shall be
subject to the following terms in addition to all the terms and conditions
set forth in the Stock Plan, including without limitation, any repurchase
rights:
(i) Upon any termination of Simmons' employment
hereunder prior to the end of the Term by Simmons for Good Reason
or by Nasdaq without Cause (and not on account of death or
Permanent Disability), the Option to the extent not then vested
shall fully vest and shall remain exercisable through the
expiration of its term.
(ii) In the event that Simmons is terminated on
account of his death or Permanent Disability, the Option to the
extent vested shall remain exercisable for a period of 365 days
following such termination.
(iii) In the event that Simmons is terminated on
account of Cause, the Option shall immediately expire upon such
termination without further consideration to Simmons.
(iv) In the event that Simmons' employment hereunder
is terminated by Simmons other than for Good Reason prior to the
end of the Term, the Option to the extent vested shall expire
ninety (90) days following such termination of employment by
Simmons.
(v) In the event that the Term shall end and shall
not be renewed pursuant to Paragraphs 4 and 10, the Option shall
continue through the expiration of its term.
2. Except as specially set forth above, all other provisions
of the Employment Agreement shall remain unchanged and in full force
effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of January 31, 2001.
By: /s/ Hardwick Simmons
_____________________________
Hardwick Simmons
THE NASDAQ STOCK MARKET, INC.
By: /s/ Frank Zarb
_____________________________
Frank Zarb
/s/ Todd A. Robinson
______________________________
Todd A. Robinson
Chairman, Management Compensation