Cboe Global Markets, Inc 8-K, filed Feb 14, 2020
Cboe Global Markets, Inc. (CBOE)
About this 8-K
Cboe Global Markets, Inc filed this 8-K on February 14, 2020, reporting on events of February 11, 2020.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
CURRENT REPORT
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Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
CEO Employment Agreement
Cboe Global Markets, Inc. (the “Company”) entered into an amended and restated employment agreement, dated February 11, 2020 (the “Agreement”), with Edward T. Tilly, the Chairman, President and Chief Executive Officer of the Company. The material changes from Mr. Tilly’s prior employment agreement, which was dated May 16, 2019, include:
(a) establishing a new employment term lasting until December 31, 2022, which term will continue to be subject to automatic subsequent one-year renewal periods in the absence of notice from the parties (each a “Renewal Period”);
(b) providing for an annual base salary of $1,265,000, a 2020 target annual bonus of $2,087,250 payable in cash, and a 2020 target annual equity incentive compensation award with a value of $4,700,000;
(c) in the event of Mr. Tilly’s termination without cause or Mr. Tilly’s termination for good reason, providing for, in addition to the other benefits previously disclosed, vesting in full (not pro-rata) of Mr. Tilly’s then outstanding performance-based restricted stock unit awards (“PSUs”) at actual performance achieved; and
(d) in the event of Mr. Tilly’s voluntary termination without good reason, providing for: (i) payment of accrued but unpaid base salary through the date of termination; (ii) if not already paid prior to termination, payment of bonus equal to the bonus that Mr. Tilly would have received for the calendar year prior to which termination occurs, based on actual performance; (iii) if termination is on or after January 1, 2023, vesting in full (not pro-rata) of outstanding PSUs granted prior to January 1, 2023, at actual performance achieved; and (iv) if termination is after the completion of a Renewal Period, vesting in full (not pro-rata) of outstanding PSUs granted during such Renewal Period, at actual applicable performance achieved.
The foregoing description of the Agreement is only a summary and is qualified in its entirety by the full text of the Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
CEO Award Agreements
On February 11, 2020, the Board of Directors of the Company approved forms of Performance-Based Restricted Stock Unit Award Agreements (the “Award Agreements”) for Mr. Tilly expected to be granted under the Second Amended and Restated Cboe Global Markets, Inc. (f/k/a CBOE Holdings, Inc.) Long-Term Incentive Plan. The material changes from Mr. Tilly’s outstanding granted PSUs, include:
(a) in the event of Mr. Tilly’s retirement or voluntary termination of service on or after January 1, 2023, providing for vesting in full (not pro-rata) at actual performance achieved; and
(b) in the event of Mr. Tilly’s termination without cause or Mr. Tilly’s termination for good reason at any time, providing for vesting in full (not pro-rata) at actual performance achieved.
The foregoing description of the Award Agreements is only a summary and is qualified in its entirety by the full text of the Award Agreements, which are filed herewith as Exhibits 10.2 and 10.3 and are incorporated herein by reference.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits
10.1 | Employment Agreement, by and between Cboe Global Markets, Inc. and Edward T. Tilly, dated February 11, 2020 (filed herewith).* |
10.2 | Form of 2020 Restricted Stock Unit Award Agreement for Edward T. Tilly (relative total shareholder return) (filed herewith).* |
10.3 | Form of 2020 Restricted Stock Unit Award Agreement for Edward T. Tilly (earnings per share) (filed herewith).* |
104Cover Page Interactive Data File (the cover page XBRL tags are embedded in the Inline XBRL document).
*Indicates Management Compensatory Plan, Contract or Arrangement.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
| CBOE GLOBAL MARKETS, INC. | |
| (Registrant) | |
| | |
| By: | /s/ Brian N. Schell |
| | Brian N. Schell |
| | Executive Vice President, Chief |
| | Financial Officer and Treasurer |
| | |
| | Dated: February 14, 2020 |
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of this 11th day of February 2020, by and between Cboe Global Markets, Inc. (“Cboe” and, unless indicated otherwise, referred to herein together with its subsidiaries as “Employer”) and EDWARD T. TILLY (“Employee”).
WITNESSETH:
WHEREAS, Cboe (and certain of its affiliates) and Employee entered into an Employment Agreement (the “Prior Agreement”) effective May 16, 2019, providing for the Employee's employment and setting forth the terms and conditions for such employment;
WHEREAS, effective as of the date hereof (the “Effective Date”), Cboe and Employee desire to terminate the Prior Agreement; and
WHEREAS, Cboe and Employee desire to enter into this Agreement effective as of the Effective Date to provide for certain terms and conditions of the Employee's employment by Cboe, as reflected in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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1. Employment. |
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(a) During the Term (as defined below), Cboe shall continue to employ Employee as its Chairman and Chief Executive Officer, and Employee shall perform such duties as may be consistent with such position. |
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(b) Employee agrees to devote his full business time and efforts to the affairs of Employer and to the performance of his duties as Cboe’s Chief Executive Officer and Chairman of the Board of Directors of Cboe (the “Board”). In addition, Employee agrees to assist the Board, to the extent reasonably requested, in connection with succession planning for executives of Cboe, including, without limitation, the identification of potential successors to the office of Chief Executive Officer. In doing so, he agrees to conduct himself at all times in a manner consistent with the excellent reputation of Employer. |
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(c) Employee agrees not to accept any membership on the board of directors of any other private or public corporation (other than Cboe affiliates) without the prior written approval of the Board. The Board will grant such approval if, in its discretion, such membership will present no conflict of interest or interference with Employee's duties as Chief Executive Officer and Chairman of the Board. |
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(d) In accordance with Cboe’s bylaws, Cboe will nominate Employee as a director for stockholder approval at each annual meeting during the Term in which his term as a director is due to expire. |
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2. Term.Employee’s employment under this Agreement shall commence on the Effective Date and shall expire on December 31, 2022 (the “Initial Term”), unless terminated earlier pursuant to the provisions of Sections 5, 6, 7 or 8 hereof. The term of employment shall be renewed automatically for successive periods of one (1) year each (a “Renewal Term”) after the expiration of the Initial Term, unless Board provides Employee, or Employee provides Board, with written notice to the contrary at least one hundred eighty (180) days prior to the end of the Initial Term or any Renewal Term. The Initial Term and any Renewal Terms are collectively referred to herein as the “Term.” If either Board or Employee elects not to renew the Term of this Agreement in accordance with this Section 2 and Employee thereafter continues in employment with Employer, Employee shall be employed on an at-will basis and the terms of such employment and any subsequent termination of employment shall be subject solely to the general employment practices and policies of Employer. |
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3. Compensation. Employer shall pay to Employee the following for all services to be performed by Employee during the Term: |
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(a) A base salary (“Base Salary”) at the rate of $1,265,000 per annum. Base Salary shall be payable in substantially equal regular installments in accordance with Employer's practices for other senior executives, as such practices may be determined from time to time. The Board and/or the Compensation Committee of the Board (the “Committee”) shall review the rate of Base Salary in such manner and at such time as is applicable to other senior executives, with any revised rate of salary to become the “Base Salary” for all purposes of this Agreement. In no event shall Employee's Base Salary be decreased below the Base Salary in effect as of the Effective Date. |
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(b) In addition to the aforementioned annual Base Salary, Employee shall be eligible to participate in any bonus or incentive program applicable to other senior executives of Employer during the Term. For 2020, Employee’s target annual bonus or incentive payment shall be $2,087,250. Any bonus or incentive payment for a fiscal year of Employer shall be payable to Employee as soon as practicable after the end of such year, and in no event later than March 15 of the year immediately following the year in which it was earned. |
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(c) Employee shall be eligible for equity incentive awards under the Second Amended and Restated Cboe Global Markets, Inc. (f/k/a CBOE Holdings, Inc.) Long-Term Incentive Plan, or any similar or successor plan (the “LTIP”), in amounts and subject to such terms as determined by the Committee in its sole discretion. For 2020, Employee’s target annual equity incentive compensation awarded shall have a grant date value of $4,700,000. The vesting terms relating to such awards, including the terms that apply in connection with a Change in Control, shall be no less favorable than those that apply to other senior executives of Employer. |
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(d) All payments under this Agreement of Base Salary and bonus, and incentive payments and severance payments and benefits, if any, shall be subject to such deductions as may be required to be made pursuant to law, government regulation, or order, or by agreement with, or consent of, Employee. |
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(e) Equity incentive awards subject to the achievement of performance goals to be granted to the Employee under the Second Amended and Restated Cboe Global Markets, Inc. (f/k/a CBOE Holdings, Inc.) Long-Term Incentive Plan, or any similar or successor plan (the “LTIP”) during the Term shall reflect the applicable provisions set forth in Sections 5(b)(v), 5(c), 5(d)(iv) and 5(d)(v). |
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4. Additional Benefits. |
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(a) Business Expenses. Employer will pay or promptly reimburse Employee for all reasonable business expenses incurred by Employee in the performance of his duties during the Term. All amounts subject to reimbursement by Employer to Employee pursuant to this paragraph (a) shall be subject to an accounting by Employee and approval by Employer. Employer also shall pay for all fees and expenses of Employee’s legal and other professional advisors in connection with the negotiation of the terms of this Agreement, in an amount not to exceed $15,000. |
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(b) Benefit Plans. During the Term, Employee shall be entitled to participate in, and receive benefits under, (i) any qualified or supplemental retirement, savings or deferred compensation plan, program or arrangement currently made available by Employer for its senior executives, and (ii) any such additional or substitute plan, program or arrangement that Employer may make available in the future and during the Term for its senior executives (“Benefit Plans”), subject to and on a basis consistent with the terms, conditions and overall administration of each such Benefit Plan. |
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(c) Vacations, Holidays, and Other Perquisites and Fringe Benefits. Employee shall be entitled to vacations, holidays and other perquisites and fringe benefits that are enjoyed by similarly situated personnel, provided that Employee shall not be entitled to participate in any perquisite or fringe benefit that has been frozen to new participants as of the Effective Date. |
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(d) Insurance Benefits. During the Term, Employee and his dependents shall be entitled to participate in, and receive benefits under, (i) any health and dental plan, disability plan, accidental death and dismemberment plan, survivor income plan, and life insurance plan or arrangement currently made available by Employer for its senior executives, and (ii) any such additional or substitute plan or arrangement that Employer may make available in the future and during the Term for its senior executives (“Insurance Plans”), subject to and on a basis consistent with the terms, conditions, and overall administration of each such Insurance Plan. |
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5. Termination. Upon the termination of Employee's employment for any reason, Employee shall be deemed to have resigned as of the date of Employee's termination of employment from all offices, directorships and fiduciary positions with Employer, its affiliates |
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and employee benefit plans unless Employee is affirmatively reappointed or re-elected to such position as of the date of Employee's termination of employment. |
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(a) Termination For Cause. The Board, by vote of a majority of its members, may terminate the employment of Employee with Cboe at any time during the Term for “Cause.” For purposes of this Agreement, “Cause” shall be deemed to exist if, and only if: |
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(i) Employee shall engage, during the performance of his duties hereunder, in acts or omissions constituting dishonesty, intentional breach of fiduciary obligation, intentional wrongdoing, gross negligence, or malfeasance that results in material harm to Employer; |
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(ii) Employee shall intentionally disobey or disregard a lawful and proper direction of the Board, or refuse to perform his duties and responsibilities under this Agreement; provided that in each case (a) Board has notified Employee in writing that the direction, duty or responsibility is one that, if not complied with, would constitute a “Cause” event under this Agreement, and (b) Employee does not cure the conduct within thirty (30) days following receipt by Employee of such written notification from Board; |
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(iii) Employee shall materially breach this Agreement, and such breach by its nature, is incapable of being cured, or such breach remains uncured for more than thirty (30) days following receipt by Employee of written notice from Board specifying the nature of the breach and demanding the cure thereof. For purposes of this clause (iii), a material breach of this Agreement that involves inattention by Employee to his duties under this Agreement shall be deemed a breach capable of cure; |
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(iv) Employee shall commit willful misconduct in connection with the performance of his duties, provided that Board first gives Employee written notice of its intention to terminate and the grounds for such termination within ninety (90) days following the date the Board is informed of such grounds at a meeting of the Board and Employee has not, within thirty (30) days following receipt of such notice, cured such misconduct (if capable of cure) in a manner that is reasonably satisfactory to the Board; or |
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(v) Employee is (i) in a judicial proceeding, after all rights of appeal have been exhausted or waived, convicted (treating a nolo contendere plea as a conviction) of a felony, or a non-felony crime involving moral turpitude, that in either case results in material harm to the Employer, or (ii) in either a judicial or quasi-judicial proceeding, as the case may be, after all rights of appeal have been exhausted or waived, convicted (treating a nolo contendere plea as a conviction) of a violation that results in disqualification under Article III, Section 4 of the By-Laws of the Financial Industry Regulatory Authority (or of any successor provision). The determination of material harm to the Employer shall be based on definite proof and not mere allegations, conjecture, or remote possibilities. |
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Without limiting the generality of the foregoing, the following shall not constitute Cause for termination of Employee or the modification or diminution of any of his authority hereunder: (x) any personal or policy disagreement between Employee and Employer or any member of the Board; or (y) any action taken by Employee in connection with his duties hereunder or any failure to act, if Employee acted or failed to act in good faith and in a manner Employee reasonably believed to be in, and not opposed to, the best interest of Employer, and Employee has no reasonable cause to believe his conduct was unlawful. In addition, Employee’s employment shall be deemed to have terminated for Cause if, after Employee’s employment has terminated, facts and circumstances are discovered that would have justified a termination for Cause under Section 5(a) above.
Notwithstanding anything herein to the contrary, if Cboe shall terminate the employment of Employee hereunder for Cause, Board shall give at least thirty (30) days prior written notice to Employee specifying in detail the reason or reasons for Employee's termination. If the employment of Employee is terminated by Cboe for Cause, Employee’s accrued but unpaid Base Salary (based upon the annual rate in effect on the date of termination) shall be paid to Employee through the date of his termination, and, except as otherwise provided in Section 24 of this Agreement and in any Benefit Plan or Insurance Plan, Employer shall have no further obligation, including any obligation for Severance Benefits (as defined herein), to Employee under this Agreement. Such termination shall have no effect upon Employee's rights under the Benefit Plans, the Insurance Plans and other employee policies and practices of Employer applicable to such termination.
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(b) Termination Without Cause. The Board, by vote of a majority of its members, may terminate the employment of Employee without Cause, at any time during the Term, as of a date at least thirty (30) days after the date a written notice of such termination is delivered by Board to Employee. In such event, Employer shall, subject to the terms of Section 12 and Section 21 of this Agreement, pay or otherwise provide to Employee: |
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(i) Employee’s accrued but unpaid Base Salary (based upon the annual rate in effect on the date of termination) through the date of termination, to be paid within thirty (30) days of termination; |
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(ii) A pro-rated bonus (the “Pro-Rated Bonus”) equal to the bonus that Employee would have received for the calendar year in which Employee’s employment terminates, based on Employee’s target annual bonus for such year, multiplied by a fraction, the numerator of which shall equal the number of calendar days Employee was employed by Employer for the year in which his employment terminates and the denominator of which shall equal three hundred sixty-five (365), to be paid in a cash lump sum within thirty (30) days of termination; |
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(iii) A lump sum cash severance payment (the “Severance Payment”) in an amount equal to the sum of (A) two (2) times Employee’s annual rate of Base Salary in effect on the date of termination and (B) two (2) times the target bonus for the year in which Employee’s employment is terminated, to be paid within thirty (30) days of termination; |
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(iv) A lump sum cash payment (the “Benefit Plan Payment”) in an amount equal to the aggregate amount of all Employer contributions that Employee or his account would have received had his employment continued for a period equal to two (2) years under the following Benefit Plans: (A) Cboe Exchange, Inc. (f/k/a Chicago Board Options Exchange) SMART Plan; (B) Cboe Exchange, Inc. (f/k/a Chicago Board Options Exchange, Incorporated) Supplemental Retirement Plan; and (C) Cboe Exchange, Inc. (f/k/a Chicago Board Options Exchange) Executive Retirement Plan, or in each case any successor plan, to be paid within thirty (30) days of termination; and |
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(v) Vesting in full (“Full Vesting”) of any outstanding performance-based restricted stock units (the “Awards”) granted under the LTIP and held by Employee as of his date of termination at the level of achievement of the Performance Goal (as described in Exhibit A of the Awards and defined in the Awards) actually achieved as of the end of the Performance Period (as defined in the Award); |
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(vi) Provided that Employee timely elects the continuation of coverage to which Employee and Employee’s spouse and dependents would be entitled under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), Employer shall also pay Employee's COBRA premiums (or an amount equal to Employee's COBRA premiums) (sufficient to cover full family health care) for a period of eighteen (18) months following the termination of his employment and, at the end of such period, Employer shall reimburse Employee’s premiums for medical coverage for Employee and his dependents under a comparable individual health insurance policy for an additional six (6) months. |
The foregoing notwithstanding, Employer's obligation to pay the COBRA and supplemental premiums described in Section 5(b)(vi) above (collectively, the “Insurance Premiums”) shall cease on the date Employee becomes eligible for comparable coverage under another group health plan that does not impose pre-existing condition limitations on Employee's coverage. Nothing herein shall be construed to extend the period of time over which COBRA continuation coverage may be provided to Employee or his dependents beyond that mandated by law. The Pro-Rated Bonus, Severance Payment, Benefit Plan Payment and Insurance Premiums described in this Section 5(b) shall be referred to herein collectively as the “Severance Benefits.” Except as otherwise provided in this Section 5(b), in Section 24 of this Agreement, and in any Benefit Plan or Insurance Plan of Employer, Employer shall have no further obligation to Employee under this Agreement following the date his employment is terminated without Cause.
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(c) Termination for Good Reason. Employee may terminate his employment at any time during the Term for Good Reason as of a date within 120 days after the initial existence of the condition constituting Good Reason; provided, (i) Employee provides written notice to Board of Employee’s intention to resign for Good Reason and specifying in reasonable detail the specific conduct of Employer that constitutes Good Reason and the specific provisions of this Agreement on which Employee relies within 90 days of its initial existence and (ii) Employer does not cure such breach or action within 30 days after the |
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date of the Employee’s notice. For purposes of this Agreement, “Good Reason” shall be deemed to exist if, and only if, without Employee's express written consent, Cboe or a successor employer: |
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(i) shall assign to Employee authorities (including officer titles), duties or responsibilities that are inconsistent in any material and adverse respect with Employee's authorities, duties or responsibilities with Employer as contemplated by this Agreement (including any material and adverse diminution of such authorities, duties or responsibilities); |
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(ii) shall materially reduce the base compensation of Employee; |
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(iii) shall require Employee to relocate his principal business office or his principal place of residence outside the Chicago metropolitan area, or assign to Employee duties that would reasonably require such relocation; |
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(iv) shall terminate, reduce or limit Employee's participation in any bonus, target bonus or incentive arrangement relative to the level of participation of other senior executives of similar rank, based upon an arbitrary decision of Employer rather than a decision reasonably related to the level of job performance of Employee; provided, however, that such action with respect to Employee's participation shall only constitute Good Reason under this Agreement if the action results in materially reducing the aggregate value of Employee's incentive compensation below the aggregate value as of the Effective Date; or |
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(v) shall materially breach any of the terms of this Agreement. |
Notwithstanding anything herein to the contrary, if Employee shall terminate his employment for Good Reason, Employer shall provide to Employee his accrued but unpaid Base Salary (based upon the annual rate in effect on the date of termination or the date immediately prior to Employer's actions described in subsections (ii) and (iv) above, whichever is greater) through the date of termination, Full Vesting and the Severance Benefits on the same terms and subject to the same conditions as described in Section 5(b) hereof. Except as otherwise provided in this Section 5(c), in Section 24 of the Agreement, and in any Benefit Plan or Insurance Plan of Employer, Employer shall have no further obligation to Employee under this Agreement following the date he terminates his employment for Good Reason.
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(d) Voluntary Termination without Good Reason. Employee may terminate his employment without Good Reason at any time during the Term as of a date at least thirty (30) days after the date a written notice of such termination is delivered by Employee to Board. If the employment of Employee is terminated by Employee without Good Reason, Employer shall, subject to the terms of Section 12 and Section 21 of this Agreement, pay or otherwise provide to Employee: |
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(i) Employee's accrued but unpaid Base Salary (based upon the annual rate in effect on the date of termination) shall be paid to Employee through the date of his termination; |
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(ii) If not already paid prior to Employee’s termination, Employee's annual bonus for the calendar year prior to the calendar year in which Employee’s employment terminates based on the level of performance actually achieved for such prior year, to be paid in a cash lump sum within thirty (30) days of termination; |
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(iii) If Employee terminates his employment without Good Reason following the completion of the Initial Term, vesting in full of any then outstanding Awards granted during the Initial Term under the LTIP and held by Employee as of his date of termination at the level of achievement of the Performance Goal (as described in Exhibit A of the Awards and defined in the Awards) actually achieved as of the end of each applicable Performance Period (as defined in the Award); |
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(iv) If Employee terminates his employment without Good Reason on or prior to the completion of the Initial Term, pro-rated vesting (as described in the Award) of any then outstanding Awards granted during the Initial Term under the LTIP and held by Employee as of his date of termination at the level of achievement of the Performance Goal (as described in Exhibit A of the Awards and defined in the Awards) actually achieved as of the end of each applicable Performance Period (as defined in the Award); |
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(v) If Employee completes a Renewal Term and terminates his employment without Good Reason following the completion of any Renewal Term, vesting in full of any then outstanding Awards granted under the LTIP during such then completed Renewal Term at the level of achievement of the Performance Goal (as described in Exhibit A of the Awards and defined in the Awards) as of the end of the applicable Performance Period (as defined in the Award); and |
except as provided immediately above and as otherwise provided in Section 24 of this Agreement or in any Benefit Plan or Insurance Plan, Employer shall have no further obligation, including any obligation for Severance Benefits, to Employee under this Agreement. Such termination shall have no effect upon Employee's rights under the Benefit Plans, the Insurance Plans and other employee policies and practices of Employer applicable to such termination.
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6. Death. If Employee dies during the Term, Employer shall pay (i) Employee's Base Salary (based on the annual rate in effect on the date of death) through the date of death, and (ii) within ninety (90) days following the date of death, the Severance Benefits to his beneficiary last designated by written instrument delivered by Employee to Employer prior to the date of death. If no such designated beneficiary shall survive Employee, such payments and benefits shall be paid and provided to Employee's surviving spouse, or if none, to his lawful descendants per stirpes then living, or if none shall survive him, to the legal representative of his estate, or if none is appointed within ninety (90) days of the date of his death, to his heirs at law under the laws of the state in which he is domiciled at the date of his death. Any Severance Benefits payable under this Section 6 are in addition to any other benefits due to Employee's beneficiaries or dependents from Employer, under any Benefit Plan or Insurance Plan. Except as otherwise provided in this Section 6, in Section 24 of this Agreement, or in any Benefit Plan or Insurance Plan, Employer shall have |
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no further obligations with respect to Employee or his beneficiaries or dependents under this Agreement following the date of his death. |
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7. Disability. |
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(a) If Employee is Permanently Disabled for a continuous period of six (6) months during the Term, Cboe may terminate Employee's employment under this Agreement upon thirty (30) days prior written notice to Employee. In such event Employer shall pay to Employee (i) his accrued but unpaid Base Salary (based on the annual rate in effect on the date of termination) through the date of termination, and (ii) within thirty (30) days following the date of such termination, the Severance Benefits. |
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(b) For purposes of this Agreement, the term “Permanently Disabled” shall have the meaning set forth in the long-term disability policy or plan maintained by Employer for its senior executives then in effect. In the absence of such a policy or plan, the term Permanently Disabled shall have the meaning ascribed to the term “disability” under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and guidance promulgated thereunder. |
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(c) Except as otherwise provided in this Section 7, in Section 24 of this Agreement, and in any Benefit Plan or Insurance Plan of Employer, Employer shall have no further obligation to Employee under this Agreement following the date his employment is terminated due to him becoming Permanently Disabled. Such termination shall have no effect upon Employee's rights under the Benefit Plans, the Insurance Plans and other employee policies and practices of Employer applicable to such termination. |
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8. Change in Control. |
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(a) Sale Payment. If during the twenty-four (24) month period following a Change in Control that occurs during the Term of the Agreement (1) Employee is terminated by Cboe or a successor employer without Cause or (2) Employee terminates his employment with Cboe or a successor employer for Good Reason, in lieu of any payments to which Employee may otherwise be entitled under Section 5 hereof, and subject to Sections 12 and 21, Employee shall be paid the following (the “Sale Payment”): (i) his accrued but unpaid Base Salary (based upon the annual rate in effect on the date of termination) through the date of termination, and (ii) the Severance Benefits (payable on the same terms and conditions as described in Section 5(b) of this Agreement, except that Employer’s obligation for supplemental medical premium reimbursement shall be for a period of eighteen (18) months, instead of six (6) months, following the initial eighteen (18) month COBRA premium reimbursement period, subject to earlier termination on the terms described in Section 5(b)). For purposes of this Agreement, a “Change in Control” means the first to occur of the following: |
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(i) The acquisition by any “person” as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934) of voting securities of Cboe or any successor |
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thereto (the “Corporation”) where such acquisition causes such Person to own 35% or more of the combined voting power of the then outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the “Outstanding Voting Securities”); provided that for purposes of this paragraph (i), the following acquisitions will not be deemed to result in a Change in Control: (w) any acquisition directly from the Corporation, (x) any acquisition by the Corporation, (y) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Corporation or any affiliate of the Corporation or (z) any acquisition by any corporation or entity pursuant to a transaction that complies with clauses (A), (B) and (C) of paragraph (iii) of this definition below; and provided further that if any Person’s beneficial ownership of the Outstanding Voting Securities reaches or exceeds 50% as a result of a transaction described in clause (w) or (x) above, and such Person subsequently acquires beneficial ownership of additional voting securities of the Corporation, such subsequent acquisition will be treated as an acquisition that causes such Person to own 35% or more of the Outstanding Voting Securities; |
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(ii) Individuals who, as of the day after the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any individual becoming a director subsequent to the day after the Effective Date whose election, or nomination for election by the Corporation’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; |
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(iii) The approval by the stockholders of the Corporation and consummation of (x) a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Corporation or (y) the acquisition of assets or stock of another corporation in exchange for voting securities of the Corporation (each of (x) and (y), a “Business Combination”); excluding, however, such a Business Combination pursuant to which (A) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that as a result of such transaction owns the Corporation or all or substantially all of the Corporation’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Voting Securities, (B) no Person (excluding any employee benefit plan (or related trust) of the Corporation or such corporation resulting from such |
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Business Combination) beneficially owns, directly or indirectly (except to the extent that such ownership existed prior to the Business Combination), an amount of, respectively, the then-outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation representing 20% thereof; and (C) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or |
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(iv) Approval by the stockholders of the Corporation of a complete liquidation or dissolution of the Corporation. |
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(b) Excess Parachute Payments. |
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(i) No Tax Gross-Up. In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, or ruling directed to Employee or Employer, by court decision, or by independent tax counsel described in paragraph (ii) next below, that the aggregate amount of any payments made to Employee (1) under this Agreement, and (2) pursuant to any Benefit Plan, Insurance Plan or plan, program or policy of Employer in connection with, on account of, or as a result of, such Change in Control (“Total Payments”) will be subject to an excise tax under the provisions of Section 4999 of the Code, or any successor section thereof (“Excise Tax”), the Total Payments shall be reduced so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount that would cause the Total Payments to be subject to the Excise Tax; provided, however, that the Total Payments shall only be reduced to the extent that the after-tax value of amounts received by Employee after application of the above reduction would exceed the after-tax value of the amounts received without application of such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to such amount. In making any determination as to whether the Total Payments would be subject to an Excise Tax, consideration shall be given to whether any portion of the Total Payments could reasonably be considered, based on the relevant facts and circumstances, to be reasonable compensation for services rendered (whether before or after the consummation of the applicable Change in Control). To the extent Total Payments must be reduced pursuant to this Section, Employer, without consulting Employee, will reduce the Total Payments to achieve the best economic benefit to Employee, and to the extent economically equivalent, on a pro-rata basis. |
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(ii) Procedure for Determinations. All determinations required to be made under this Section 8(b), and the assumptions to be utilized in arriving at such determinations, shall be made by Independent Tax Counsel selected by Employee and approved by Employer (which approval shall not be unreasonably withheld), and such determination shall be conclusive and binding on all parties. Employer shall provide such information as Independent Tax Counsel may reasonably |
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request, and such counsel may engage accountants or other experts at Employer's expense to the extent that such counsel deems necessary or advisable to enable it to reach a determination. The term “Independent Tax Counsel,” as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party hereto. It is hereby agreed that neither Employer nor Employee shall engage any such Independent Tax Counsel as counsel for any purpose, other than to make the determination provided for herein, for three (3) years following such firm's announcement of its determination. |
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(iii) Internal Revenue Service Claims. In the event that upon any audit by the Internal Revenue Service, or by a state or local taxing authority, of the Total Payments, a change is formally determined to be required in the amount of taxes paid by Employee, appropriate adjustments will be made under this Agreement such that the net amount that is payable to Employee after taking into account the provisions of Code Section 4999 will reflect the intent of the parties as expressed in this Section. Employee shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require payment of an Excise Tax or an additional Excise Tax on the Total Payments (a “Claim”). Such notification shall be given as soon as practicable but no later than ten (10) business days after Employee is informed in writing of such Claim and shall apprise Employer of the nature of such Claim and the date on which such Claim is requested to be paid. Employee shall not pay such Claim prior to the expiration of the thirty (30)-day period following the date on which Employee gives such notice to Employer (or such shorter period ending on the date that any payment of taxes with respect to such Claim is due). If Employer notifies Employee in writing prior to the expiration of such period that it desires to contest such Claim, Employee shall: (A) give Employer any information reasonably requested by Employer relating to such Claim, (B) take such action in connection with contesting such Claim as Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such Claim by an attorney reasonably selected by Employer, (C) cooperate with Employer in good faith in order to contest effectively such Claim, and (D) permit Employer to participate in any proceedings relating to such Claim; provided, however, that Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax, additional Excise Tax, or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subparagraph (iii), Employer, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such Claim and may, at its sole option, either direct Employee to pay the tax claimed and sue for a refund or contest the Claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine, provided, however, that if Employer directs Employee to pay such Claim and sue for a refund, Employer shall advance the amount of such payment to Employee on an interest-free basis or, if |
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such an advance is not permissible thereunder, pay the amount of such payment to Employee as additional compensation, and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax, additional Excise Tax, or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or additional compensation; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. |
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(iv) Refund. If, after the receipt by Employee of an amount advanced or paid by Employer pursuant to paragraph (iii) above, Employee becomes entitled to receive any refund with respect to such Claim, Employee shall (subject to Employer's complying with the requirements of subparagraph (iii)) promptly pay to Employer the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by Employer pursuant to paragraph (iii), a determination is made that Employee shall not be entitled to any refund with respect to such Claim and Employer does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid. |
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9. Restrictive Covenants. For purposes of this Section 9 and Section 10, each reference to “Employer” includes Employer and its affiliates (including, but not limited to, Cboe). Employee understands the global nature of Employer's businesses and the effort Employer undertakes to develop and protect its business and its competitive advantage. Accordingly, Employee agrees that the scope and duration of the restrictions described in this Agreement are reasonable and necessary to protect the legitimate business interests of Employer. Employee further agrees that during the period of his employment and for a period of two years following a termination of Employee's employment pursuant to Section 5(a), 5(b), 5(c), 5(d), 7 or 8 hereof, Employee shall not: |
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(a) singly, jointly, or in any other capacity, in a manner that contributes to any research, technology, development, account, trading, marketing, promotion, or sales and that relates to Employee's service with Employer, directly or beneficially, manage, join, participate in the management, operation or control of, or work for (as an employee, consultant or independent contractor), or permit the use of his name by, or provide financial or other assistance to, or be connected in any manner with (i) any exchange, facility, electronic communications network (“ECN”), electronic foreign currency exchange market (“FX”) matching platform, multilateral trading facility, or alternative trading system (“ATS”); (ii) the ECN, ATS or FX business lines of any full service broker dealer; or (iii) any business line of any company that is substantially similar to any additional business line developed or entered into by Employer during Employee’s employment with Employer, provided that, in the case of clauses (i), (ii) and (iii), such entity or business line that directly competes with Employer, without the express written approval of the Lead Director of the Board; |
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(b) provide any service or assistance that (1) is of the general type of service or assistance provided by Employee to Employer, (2) relates to any technology, account, |
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product, project or piece of work, with which Employee was involved during his employment with Employer, and (3) contributes to causing an entity to come within the definition described in paragraph (a) above; |
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(c) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of Employer (or was an employee of Employer during the year preceding such solicitation), nor solicit any of Employer's then current employees (or an individual who was employed by or engaged by Employer during the year preceding such solicitation) to terminate employment or an engagement with Employer, nor agree to hire any then current employee (or an individual who was an employee of Employer during the year preceding such hire) of Employer into employment with himself or any company, individual or other entity; |
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(d) directly or indirectly divert or attempt to divert from Employer any business in which Employer has been actively engaged during the Term, nor interfere with the relationships of Employer with its sources of business; or |
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(e) unless required by governmental agencies or under applicable laws or regulations, directly or indirectly, make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame or disparage the business reputation, practices, or conduct of Employer, its employees, directors, or officers. Unless required by governmental agencies or under applicable laws or regulations, Employee acknowledges and agrees that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to the news media, investors, potential investors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and customers. |
Unless required by governmental agencies or under applicable laws or regulations, the officers and directors of the Employer shall not directly or indirectly, make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame or disparage the business reputation, practices, or conduct of Employee. Unless required by governmental agencies or under applicable laws or regulations, this prohibition extends to statements, written or verbal, made to anyone, including but not limited to the news media, investors, potential investors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and customers.
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10. Confidentiality. |
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(a) Employee acknowledges that Employer will disclose Secret or Confidential Information to Employee during the Term to enable him to perform his duties hereunder. Employee agrees that, subject to the following sentence, he shall not during the Term (except in connection with the proper performance of his duties hereunder) and thereafter, without the prior written consent of Board, disclose to any person or entity any material or significant Secret or Confidential Information concerning the business of Employer that was obtained by Employee in the course of his employment by Employer. This paragraph shall not be applicable if and to the extent Employee is required to testify in a legislative, |
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judicial or regulatory proceeding pursuant to an order of Congress, any state or local legislature, a judge, or an administrative law judge, or if such Secret or Confidential Information is required to be disclosed by Employee by any law, regulation or order of any court or regulatory commission, department or agency. Employee further agrees that if his employment by Cboe is terminated for any reason, he will not take with him, but will leave with Employer, all records and papers and all matter of whatever nature that bears Secret or Confidential Information of Employer. For purposes of this Agreement, the term “Secret or Confidential Information” shall include, but not be limited to, any and all records, notes, memoranda, data, writings, research, personnel information, customer information, clearing members' information, Employer's financial information and plans, processes, methods, techniques, systems, formulas, patents, models, devices, compilations or any other information of whatever nature in the possession or control of Employer, that has not been published or disclosed to the general public, the options industry, the equities industry, the foreign currency exchange industry or the commodities futures industry; provided, however, that such term shall not include knowledge, skills, and information that is common to the trade or profession of Employee. |
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(b) Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prohibits Employee from confidentially or otherwise communicating or filing a charge or complaint with a governmental or regulatory entity, participating in a governmental or regulatory entity investigation, or giving truthful testimony or making other disclosures to a governmental or regulatory entity (in each case, without having to disclose any such conduct to Employer), or from responding if properly subpoenaed or otherwise required to do so under applicable law. In addition, nothing in this Agreement limits Employee’s right to receive an award from a governmental or regulatory entity for information provided to such an entity (and not as compensation for actual or alleged personal injury or damages to Employee). |
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(c) Pursuant to the Defend Trade Secrets Act of 2016 (18 U.S.C. 1833(b)), Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a federal, state, or local government official, or to an attorney, solely for the purpose of reporting or investigating a violation of law. Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret made in a complaint, or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Employee files a lawsuit or other action alleging retaliation by Employer for reporting a suspected violation of law, Employee may disclose the trade secret to his attorney and use the trade secret in the court proceeding or other action, if Employee files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order. This paragraph will govern to the extent it may conflict with any other provision of this Agreement. |
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11. Remedies. Employee consents and agrees that if he violates any provisions of Sections 9 or 10 of this Agreement, Employer or its successors in interest shall be entitled, in addition to any other remedies that they may have, including money damages, to an injunction to be issued by a court of competent jurisdiction, restraining him from committing or continuing any violation of Sections 9 or 10 hereof. If, at any time, Employee violates or threatens to violate, to |
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any material extent, any of the covenants or agreements set forth in Sections 9 or 10 of this Agreement, Cboe shall have the right to terminate the employment of Employee for Cause in accordance with the provisions of paragraph (a) of Section 5 hereof. In the event that Employee is found to have breached any provision set forth in Section 9 of this Agreement, the time period provided for in that provision shall be deemed tolled ( i.e., it will not begin to run) for so long as Employee was in violation of that provision. |
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12. Release. Notwithstanding anything herein to the contrary, as a condition to receiving any severance payments or benefits under this Agreement, Employee agrees to execute a release of claims (in a form substantially similar to the form set forth in Exhibit A, which is attached hereto and made a part hereof) (the “Release”). Employee must deliver to Cboe an original, signed Release and the revocability period (if any) must elapse by the Release Deadline. For purposes of this Section, the “Release Deadline” means the date that is sixty (60) calendar days after Employee's termination of employment. No severance payments or benefits under this Agreement shall be made or provided prior to the date that both (i) Employee has delivered an original, signed Release to Cboe and (ii) the revocability period (if any) has elapsed. Payment of any severance payments or benefits that are not exempt from Section 409A of the Code shall be delayed until the Release Deadline, irrespective of when Employee executes the Release; provided, however, that where Employee's termination of employment and the Release Deadline occur within the same calendar year, the payment may be made up to thirty (30) days prior to the Release Deadline, and provided further that where Employee's termination of employment and the Release Deadline occur in two separate calendar years, payment may not be made before the later of January 1 of the second year or the date that is thirty (30) days prior to the Release Deadline. If Employee does not deliver an original, signed Release to Cboe by the Release Deadline, (i) Employee's rights shall be limited to those made available to Employee as if Employee were terminated under Section 5(d) above, and (ii) Employer shall otherwise have no obligation to pay or provide to Employee any severance payments or benefits described in this Agreement, or any other monies on account of the termination of Employee's employment. |
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13. Assignment. Neither Employee nor Cboe may assign this Agreement, except that Cboe’s obligations hereunder shall be binding legal obligations of any successor to all or substantially all of Cboe’s business by purchase, merger, consolidation, or otherwise. |
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14. Employee Assignment. No interest of Employee or his spouse, dependent or any other beneficiary under this Agreement, or any right to receive any payment or distribution hereunder, shall be subject in any manner to sale, transfer, assignment, pledge, attachment, garnishment, or other alienation or encumbrance of any kind, nor may such interest or right to receive a payment or distribution be taken, voluntarily or involuntarily, for the satisfaction of the obligations or debts of, or other claims against, Employee or his spouse, dependent or any other beneficiary, including claims for alimony, support, separate maintenance, and claims in bankruptcy proceedings. |
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15. Benefits Unfunded. (i) All rights of Employee and his spouse, dependent or any other beneficiary under this Agreement shall at all times be entirely unfunded and no provision shall at any time be made with respect to segregating any assets of Employer for payment of any amounts due hereunder; (ii) neither Employee nor his spouse, dependent or any other beneficiary shall have any interest in or rights against any specific assets of Employer; and (iii) Employee and |
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his spouse, dependent or any other beneficiary shall have only the rights of a general unsecured creditor of Employer. |
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16. Waiver. No waiver by either party at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by the other party shall be deemed a waiver of any other provisions or conditions at the same time or at any prior or subsequent time. |
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17. Applicable Law. This Agreement shall be construed and interpreted pursuant to the internal laws of the State of Illinois, without regard to principles of conflicts of laws. The jurisdiction and venue for any disputes arising under, or any action brought to enforce (or otherwise relating to), this Agreement will be exclusively in the courts in the State of Illinois, County of Cook, including the federal courts located therein (should federal jurisdiction exist). |
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18. Entire Agreement. This Agreement contains the entire agreement between Cboe and Employee, and supersedes any and all other previous agreements, written or oral, between the parties relating to the subject matter hereof, including, without limitation, the Prior Agreement. No amendment or modification of the terms of this Agreement shall be binding upon either of the parties hereto unless reduced to writing and signed by each of the parties hereto. |
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19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. |
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20. Severability. The parties agree that this Agreement shall be construed in a way to make each of its provisions enforceable, but that the unenforceability of one (1) or more provisions in one (1) or more instances will not make invalid the entire Agreement or any other provisions of this Agreement as all of its provisions are severable. In the event a provision may be unenforceable as written, the parties agree that it shall be partially enforced to the extent permitted by law. The unenforceability of a provision in one instance shall not affect its enforceability in other instances. |
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21. Compliance. The payments and benefits under this Agreement are intended to comply with or be exempt from Section 409A of the Code and the interpretative guidance thereunder, including the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind distributions, and shall be administered accordingly. The Agreement shall be construed and interpreted with such intent. If any provision of this Agreement needs to be revised to satisfy the requirements of Section 409A of the Code, then such provision shall be modified or restricted to the extent and in the manner necessary to be in compliance with such requirements of the Code and any such modification will attempt to maintain the same economic results as were intended under this Agreement. Employer cannot guarantee that the payments and benefits that may be paid or provided pursuant to this Agreement will satisfy all applicable provisions of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, any compensation or benefit payable under this Agreement that constitutes a deferral of compensation under Section 409A of the Code shall be subject to the following: |
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(a) Whenever a payment under this Agreement specifies a payment period, the actual date of payment within such specified period shall be within the sole discretion of Employer, and Employee shall have no right (directly or indirectly) to determine the year |
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in which such payment is made. In the event a payment period straddles two consecutive calendar years, the payment shall be made in the later of such calendar years. |
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(b) No compensation or benefit that is subject to the requirements of Section 409A of the Code and that is payable upon Employee's termination of employment shall be paid unless Employee's termination of employment constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h), and references in this Agreement to "termination," "termination of employment" or like terms shall mean a "separation from service." |
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(c) If Employee is deemed at the time of his separation from service to be a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the compensation or benefits to which Employee is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code (any such delayed commencement, a “Payment Delay”), such compensation or benefits shall be provided to Employee on the earlier to occur of (1) the date that is six (6) months and one day from the date of Employee's “separation from service” with Employer or (2) Employee’s death. Upon the earlier of such dates, all payments and benefits deferred pursuant to the Payment Delay shall be paid in a lump sum to Employee, and any remaining compensation and benefits due under the Agreement shall be paid or provided as otherwise set forth herein. The determination of whether Employee is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from service shall be made by Employer in accordance with the terms of Section 409A of the Code. |
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(d) Each separately identified amount to which Employee is entitled to payment and each installment payment payable hereunder shall be deemed to be a separate payment for purposes of Section 409A of the Code. |
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(e) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A of the Code, (i) the right to payment or reimbursement or in-kind benefits shall not be subject to liquidation or exchange for any other benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year of Employee shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated by any lifetime and other annual limits provided under Employer’s health plans and (iii) such payments shall be made on or before the last day of Employee’s taxable year following the taxable year in which the expense was incurred. |
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(f) The payment of any compensation or benefit that is subject to the requirements of Section 409A of the Code may not be accelerated except to the extent permitted by Section 409A of the Code. |
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(g) The payment of any tax gross-up payment will be made by the end of Employee's taxable year next following Employee's taxable year in which he remits the related taxes. Reimbursement of expenses incurred by Employee due to a tax audit or |
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litigation addressing the existence or amount of a tax liability will be made by the end of Employee's taxable year following Employee's taxable year in which the taxes that are the subject of the audit or litigation are remitted to the taxing authority, or where as a result of such audit or litigation no taxes are remitted, the end of Employee's taxable year following Employee's taxable year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation. |
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22. Successors. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, representatives and successors. |
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23. Notices. Notices required under this Agreement shall be in writing and sent by personal delivery, or by registered U.S. mail, return receipt requested, to the following addresses, or to such other address as the party being notified may have previously furnished to the other by written notice: |
If to Board, Cboe or Employer:
Cboe Global Markets, Inc.
400 S. LaSalle Street
Chicago, Illinois 60605
Attention: Lead Director of the Board and Chief Human Resources Officer
If to Employee:
At the most recent address on file with the Company
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24. Indemnity. Cboe, on its behalf and on behalf of its subsidiaries that Employee serves as an officer or director, shall indemnify, protect, defend and save Employee harmless from and against any threatened, pending, contemplated or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in which Employee is made a party by reason of the fact that Employee is or was an officer, employee or agent of Employer, or any judgment, amount paid in settlement (with the consent of Employer), fine, loss, expense, cost, damage and reasonable attorneys' fees incurred by reason of the fact that Employee is or was an officer, employee or agent of Employer; provided, however, that Employee acted in good faith and in a manner he reasonably believed to be in the best interests of Employer, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Employer, at its expense, shall have the right to purchase and maintain insurance or fidelity bonds on behalf of Employee against any liability asserted against him and incurred by him in his capacity as an officer, employee, or agent of Employer. Employee shall also be indemnified under the Certificate of Incorporation and By-Laws of Cboe and its subsidiaries that Employee serves as an officer or director, and covered by directors' and officers' liability insurance policies that are the same as or equivalent to those Employer currently carries for its other executives. |
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25. Clawback. Notwithstanding anything in this Agreement to the contrary, all incentive compensation paid to Employee pursuant to this Agreement or otherwise in connection with Employee’s employment with Cboe shall be subject to applicable law, as may be in effect from time to time, including, without limitation, the provisions of any Employer policy to the |
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extent required by Section 10D of the Securities Exchange Act of 1934 and any applicable rules or regulations issued by the Securities and Exchange Commission or any national securities exchange or national securities association on which Cboe stock may be traded. |
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26. Headings. The headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of any provision of this Agreement. |
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27. Prior Agreement. Cboe and Employee agree to terminate the Prior Agreement as of the Effective Date. |
[Signature Page Follows]
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IN WITNESS WHEREOF, Employee has hereunto set his hand, and Cboe has caused these presents to be executed in its name on its behalf, all as of the date first above written.
/s/ Edward T. Tilly 2/11/2020
Edward T. TillyDate
Cboe Global Markets, Inc.
/s/ Brian N. Schell
By: Brian N. Schell
Title: Executive Vice President, Chief Financial Officer and Treasurer
Exhibit A
RELEASE OF CLAIMS
THIS RELEASE OF CLAIMS (“Release”) is made and entered into this _______ day of _____________20__, to be effective as of (the “Effective Date”), by and between CBOE GLOBAL MARKETS, INC. (“Cboe”) and EDWARD T. TILLY, a resident of the State of Illinois (“Tilly”).
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1. In consideration of Cboe’s payment to Tilly of the severance pay and benefits described in the Employment Agreement by and between Cboe and Tilly (the “Employment Agreement”), to which Tilly is not otherwise entitled and the sufficiency of which Tilly acknowledges, Tilly does hereby fully, finally and unconditionally release and forever discharge Cboe, Cboe’s subsidiaries and affiliates, and the former, current and future officers, directors, employees, members, shareholders, representatives and agents and all of their respective predecessors, successors, and assigns of Cboe and Cboe’s subsidiaries and affiliates (collectively “Released Parties”), in their personal, corporate and representative capacities, from any and all rights, claims, liabilities, obligations, damages, costs, expenses, attorneys' fees, suits, actions, and demands, of any and every kind, nature and character, known or unknown, liquidated or unliquidated, absolute or contingent, in law and in equity, enforceable or arising under any local, state or federal common law, statute or ordinance relating to Tilly’s past employment with Cboe or any past actions, statements, or omissions of Cboe or any of the Released Parties occurring prior to Tilly's execution of this Release, including but not limited to all claims for defamation, wrongful termination, back pay and benefits, pain and suffering, negligent or intentional infliction of emotional distress, breach of contract, and interference with contractual relations, tort claims, employment discrimination claims, and all claims arising under the Age Discrimination in Employment Act of 1967, as amended (“ADEA”), Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991 (42 U.S.C. § 1981), the Family and Medical Leave Act, the Equal Pay Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Older Workers Benefit Protection Act, the Illinois Human Rights Act, the Workers Adjustment and Retraining Act, and the Chicago and Cook County Human Rights Ordinances, and any other statutory, contract, implied contract, or common law claim arising out of or involving Tilly’s employment, the termination of Tilly’s employment, or any continuing effects of Tilly’s employment with Cboe. |
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2. Tilly agrees not to sue Cboe or any of the Released Parties with respect to rights and claims covered by this Release. If any government agency or court assumes jurisdiction of any charge, complaint, or cause of action covered by this Release, Tilly will not seek and will not accept any personal equitable or monetary relief in connection with such investigation, action, suit, or legal proceeding. |
regulatory entity for information provided to such an entity (and not as compensation for actual or alleged personal injury or damages to Tilly). Tilly acknowledges and agrees that this Release is not in settlement of a claim of sexual discrimination or harassment. |
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4. Tilly has twenty-one (21) days (until ______________, 20___) within which to consider this Release, although Tilly may accept it at any time within those twenty-one (21) days. Once Tilly has signed this Release, Tilly will still have seven (7) days in which to revoke his acceptance of the ADEA portion of the Release by notifying Cboe , and specifically, its Chief Human Resources Officer. The ADEA portion of the Release will not be effective or enforceable until the seven (7) day revocation period has expired. If the ADEA portion of the Release is revoked, the remainder of this Release shall remain in full force and effect as to all of its terms except for the release of claims under the ADEA, and Cboe will have three (3) business days to rescind the entire Release by so notifying Tilly. |
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5. Tilly agrees that he will continue to be governed by those obligations arising under Sections 9, 10 and 11 of the Employment Agreement, which are incorporated by reference herein, shall not be released, shall be unaffected hereby, and shall remain in full force and effect. |
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6. This Release shall be binding upon and inure to the benefit of Cboe and its successors and assigns and Tilly and his heirs, executors and administrators. |
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7. This Release shall be construed and interpreted under the laws of the State of Illinois to the extent not preempted by applicable laws of the United States. |
___________________________________ Dated:______________________________
Edward T. Tilly
CBOE GLOBAL MARKETS, INC.
By: _________________________________
Its: _________________________________
Dated:_______________________________
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Exhibit 10.2
CBOE GLOBAL MARKETS, INC. LONG-TERM INCENTIVE PLAN
Restricted Stock Unit Award Agreement – Performance Based
This Restricted Stock Unit Award Agreement (this “Agreement”) is dated effective _______________________(the “Award Date”), and is between Cboe Global Markets, Inc. (the “Corporation”) and Edward T. Tilly (“Participant”). Any term capitalized but not defined in this Agreement will have the meaning set forth in the Second Amended and Restated Cboe Global Markets, Inc. (formerly CBOE Holdings, Inc.) Long-Term Incentive Plan (as may be amended from time to time, the “Plan”).
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1. |
Award. The Corporation hereby awards to Participant [___] Restricted Stock Units (the “Restricted Stock Units”). The Restricted Stock Units will be subject to the terms and conditions of the Plan and this Agreement. Each Restricted Stock Unit is a notional amount that represents one unvested share of Stock and entitles Participant, subject to the terms of this Agreement, to receive a share of Stock if and when the Restricted Stock Unit vests. |
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2. |
No Rights as Stockholder; Dividend Equivalents. Participant shall have no voting rights with respect to shares of Stock represented by Restricted Stock Units until the date of the issuance of the shares of Stock (as evidenced by the appropriate entry on the books of the Corporation or of a duly authorized transfer agent of the Corporation). Notwithstanding the foregoing, in the event that the Corporation declares a cash dividend on shares of Stock, on the payment date of the dividend, Participant will be credited with Dividend Equivalent Rights equal to the amount of the cash dividend per share multiplied by the number of Restricted Stock Units held by Participant on the dividend’s record date. The Dividend Equivalent Rights credited to Participant under the preceding sentence will be deemed to be reinvested in additional Restricted Stock Units, which will be subject to the same terms regarding vesting, forfeiture, and distribution as Restricted Stock Units awarded to Participant under this Agreement. |
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3. |
Performance Period. The Performance Period for the Restricted Stock Units shall be the three (3) year period commencing on [__] and ending on [__]. |
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(a) Subject to Sections 4(b) and 4(c) below, Participant’s Restricted Stock Units will vest upon the expiration of the Performance Period, subject to and contingent upon achievement of the Performance Goal described in Exhibit A hereto and Participant’s continued Service through the last day of the Performance Period. Notwithstanding the foregoing, if Participant attains at least age fifty-five (55) and completes at least ten (10) years of Service (“Retirement Vesting”) and subsequently retires or Participant’s service is terminated (other than pursuant to an event described in Section 4(b) or 4(c) below) prior to expiration of the Performance Period, Participant shall be entitled to receive: (I) if Participant retires or voluntarily terminates Service on or prior to December 31, 2022 (i) the number of Restricted Stock Units that would have vested in accordance with the preceding sentence based on the level of achievement of the Performance Goal actually achieved if Participant had continued Service through the last day of the Performance Period, multiplied by (ii) a fraction, the numerator of which is the number of days during |
the Performance Period on which Participant was providing Service, and the denominator of which is 1,095 or (II) if Participant retires or voluntarily terminates Service on or after January 1, 2023 or in the event of a termination of Participant’s Service by the Corporation or its Affiliate without Cause or by Participant for “Good Reason” (as defined below) at any time during the Performance Period, the number of Restricted Stock Units that would have vested in accordance with the preceding sentence based on the level of achievement of the Performance Goal actually achieved if Participant had continued Service through the last day of the Performance Period. |
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(b) The Restricted Stock Units will vest at the Target level of achievement of the Performance Goal (as described in Exhibit A), upon the earlier to occur of (i) Participant’s death or (ii) Participant’s becoming Disabled, provided that such condition qualifies as “disability” as defined for purposes of Section 409A, in each case, if prior to any forfeiture event under Section 4(d) below. |
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(c) This subsection 4(c) shall apply to this Agreement, this Award and any Replacement Award provided to Participant to replace this Award in lieu of Section 8.2(b) of the Plan. Upon a termination of Participant’s Service by the Corporation or its Affiliate without Cause or by Participant for “Good Reason” (as defined below), in each case, upon or within two years after a Change in Control and prior to any forfeiture event under Section 4(d) below, this Award or any Replacement Award held by Participant shall become fully vested and free of restrictions at the Target level of achievement of the Performance Goal (as described in Exhibit A, as amended by the Replacement Award, if any), except that vesting shall be, to the extent determinable, at the level of achievement of the Performance Goal actually achieved as of the date of termination of Service (with similar performance assumed to be achieved through the remainder of the Performance Period) if greater than the Target level of achievement, and shall be distributed upon or within 60 days of such termination of Service. Notwithstanding the foregoing, if this Award or the Replacement Award, as applicable, is considered deferred compensation subject to Section 409A, payment shall be made pursuant to the Award’s original schedule if necessary to comply with Section 409A. |
For purposes of this Award “Good Reason” shall be deemed to exist if, and only if, without the Participant’s express written consent:
(i) The Corporation or its Affiliate assigns to Participant authorities, duties or responsibilities (including titles) that are inconsistent in any material and adverse respect with Participant’s immediately preceding authorities, duties or responsibilities with the Corporation or its Affiliate (including any material and adverse diminution of such immediately preceding authorities, duties or responsibilities);
(ii) The Corporation or its Affiliate materially reduces Participant’s base compensation;
(iii) The Corporation or its Affiliate requires Participant to relocate his or her principal business office or principal place of residence outside the Chicago metropolitan area (or outside the immediately preceding location of Participant’s principal business
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office with the Corporation or its Affiliate), or assigns to Participant duties that would reasonably require such relocation;
(iv) The Corporation or its Affiliate materially breaches the terms of any agreement pursuant to which services are provided to the Corporation or its Affiliate by Participant; or
(v) The Corporation or its Affiliate terminates, reduces or limits Participant’s participation in any bonus or incentive compensation arrangement relative to the level of participation of other employees of similar rank for a reason that is not reasonably related to Participant’s level of job performance and provided that such action results in a material reduction in the aggregate value of Participant’s incentive compensation below the aggregate value as of the immediately preceding bonus or incentive compensation performance period.
Participant’s voluntary termination of Service shall not be considered a termination of Service for Good Reason unless Participant terminates his or her Service within 120 days after the initial existence of the condition constituting Good Reason; provided, Participant provides written notice to the Corporation or its Affiliate of Participant’s intention to resign for Good Reason, which notice specifies in reasonable detail the breach or action giving rise thereto within 90 days of its initial existence, and the Corporation or its Affiliate does not cure such breach or action within 30 days after the date of the Participant’s notice.
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(d) If Participant’s Service is terminated for any reason before all of Participant’s Restricted Stock Units have vested under this Agreement (including pursuant to an event described in Section 4(b) or 4(c) above), Participant’s unvested Restricted Stock Units will be forfeited upon the effective date of such termination of Service. Neither the Corporation nor any Affiliate will have any further obligations to Participant under this Agreement if Participant’s Restricted Stock Units are forfeited. |
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5. |
Terms and Conditions of Distribution. |
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(a) Distribution of a share of Stock that corresponds to a vested Restricted Stock Unit (other than a Restricted Stock Unit that vested due to Retirement Vesting) shall be made to Participant as soon as practicable after the Restricted Stock Unit vests, but not later than two and a half (2½) months after the end of the calendar year in which the Restricted Stock Unit vests. |
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(b) Distribution of a share of Stock that corresponds to a Restricted Stock Unit that vested due to Retirement Vesting shall be made to Participant during the two and a half (2½) months period after the end of the calendar year in which or with which the Performance Period expired or, if earlier, as soon as practicable following the earlier to occur of the following dates: (i) the date on which such Restricted Stock Unit would otherwise have vested in accordance with Section 4(b), or (ii) Participant’s “separation from service” as defined for purposes of Section 409A pursuant to Section 4(c) (or, if Participant is a “specified employee” as defined for purposes of Section 409A on the date |
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of such separation from service, the date that is the first day of the seventh (7th) month following Participant’s separation from service). |
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(c) If Participant dies before the date on which the Corporation would have distributed shares of Stock in satisfaction of vested Restricted Stock Units, the Corporation will distribute such shares of Stock to Participant’s designated beneficiary(ies) or, if none are designated or surviving, to Participant’s estate or personal representative. The Corporation is not required to issue or deliver any shares of Stock before completing the steps necessary to comply with applicable Federal and state securities laws (including any registration requirements) and applicable stock exchange rules and practices. The Corporation will use commercially reasonable efforts to cause compliance with those laws, rules and practices. The foregoing provisions are subject in all cases to the requirements of Section 409A. |
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6. |
Nontransferability. Unvested Restricted Stock Units may not be sold, transferred, exchanged, pledged, assigned, garnished, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Any effort to assign or transfer the rights under this Agreement will be wholly ineffective, and will be grounds for termination by the Committee of all rights of Participant under this Agreement. |
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7. |
Administration. The Committee administers the Plan. Participant’s rights under this Agreement are expressly subject to the terms and conditions of the Plan and to any guidelines the Committee adopts from time to time. The interpretation and construction by the Committee of the Plan and this Agreement, and such rules and regulations as may be adopted by the Committee for purposes of administering the Plan and this Agreement, will be final and binding upon Participant. |
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8. |
Securities Law Requirements. If at any time the Board or Committee determines that issuing Stock pursuant to this Agreement would violate applicable securities laws, the Corporation will not be required to issue such Stock. The Board or Committee may declare any provision of this Agreement or action of its own null and void, if it determines the provision or action fails to comply with applicable securities laws. The Corporation may require Participant to make written representations it deems necessary or desirable to comply with applicable securities laws. |
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9. |
Payment of Withholding Taxes. Distribution to Participant of shares of Stock under this Agreement will be subject to Federal income and other tax withholding (and state and local income tax withholding, or non-U.S. tax withholding, if applicable) by the Corporation in respect of taxes on income realized by Participant. The Corporation may withhold the minimum statutorily required amounts from future paychecks to Participant, or may require that Participant deliver to the Corporation the amounts to be withheld. Participant agrees to allow the Corporation, upon any payment of shares of Stock to Participant under this Agreement, to withhold a portion of the shares of Stock otherwise deliverable to Participant having a Fair Market Value of the tax withholding obligation (or, in the discretion of the Corporation, to satisfy up to the maximum tax withholding obligation), in satisfaction of any Federal income and other tax withholding (and any state and local income tax withholding, or non-U.S. tax withholding, if applicable). Notwithstanding any provision herein to the contrary, in the event that any Restricted Stock Units become subject to tax |
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withholding before the shares of Stock subject to the Restricted Stock Units would otherwise be delivered to the Participant, the Corporation may issue a sufficient number of whole shares of Stock with respect to the Restricted Stock Units that does not exceed the minimum tax withholding obligation, which shares of Stock shall be withheld by the Corporation to satisfy its withholding obligation, in accordance with and subject to the requirements of Section 409A. |
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(a) singly, jointly, or in any other capacity, in a manner that contributes to any research, technology, development, account, trading, marketing, promotion, or sales and that relates to Participant’s Service with Cboe, directly or beneficially, manage, join, participate in the management, operation or control of, or work for (as an employee, consultant or independent contractor), or permit the use of his or her name by, or provide financial or other assistance to, or be connected in any manner with (i) any exchange, facility, electronic communications network (“ECN”), electronic foreign currency exchange market (“FX”) matching platform, multilateral trading facility, or alternative trading system (“ATS”); (ii) the ECN, ATS or FX business lines of any full service broker dealer; or (iii) any business line of any company that is substantially similar to any additional business line developed or entered into by Cboe during Participant’s Service, provided that, in the case of clauses (i), (ii) and (iii), such entity or business line that directly competes with Cboe; |
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(b) provide any service or assistance that (i) is of the general type of service or assistance provided by Participant to Cboe, (ii) relates to any technology, account, product, project or piece of work with which Participant was involved during his Service, and (iii) contributes to causing an entity to come within the definition described in Section 10(a) above; |
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(c) solicit or accept if offered to Participant, with or without solicitation, on his or her own behalf or on behalf of any other person, the services of any person who is a then-current employee of Cboe (or was an employee of Cboe during the year preceding such solicitation), nor solicit any of Cboe’s then-current employees (or an individual who was employed by or engaged by Cboe during the year preceding such solicitation) to terminate employment or an engagement with Cboe, nor agree to hire any then-current employee (or an individual who was an employee of Cboe during the year preceding such hire) of Cboe into employment with Participant or any company, individual or other entity; or |
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(d) directly or indirectly divert or attempt to divert from Cboe any business in which Cboe has been actively engaged during Participant’s Service, nor interfere with the relationships of Cboe or with their sources of business. |
Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prohibits Participant from confidentially or otherwise communicating or filing a charge or complaint with a governmental or regulatory entity, participating in a governmental or regulatory entity investigation, or giving truthful testimony or making other disclosures to a governmental or regulatory entity (in each case, without having to disclose any such conduct to the Corporation or an Affiliate), or from responding if properly subpoenaed or otherwise required to do so under applicable law. In addition, nothing in this Agreement limits Participant’s right to receive an award from a governmental or regulatory entity for information provided to such an entity (and not as compensation for actual or alleged personal injury or damages to Participant).
Pursuant to the Defend Trade Secrets Act of 2016 (18 U.S.C. 1833(b)), Participant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a federal, state, or local government official, or to an attorney, solely for the purpose of reporting or investigating a violation of law. Participant shall not be held criminally or
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civilly liable under any federal or state trade secret law for the disclosure of a trade secret made in a complaint, or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Participant files a lawsuit or other action alleging retaliation by the Corporation or an Affiliate for reporting a suspected violation of law, Participant may disclose the trade secret to his or her attorney and use the trade secret in the court proceeding or other action, if Participant files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order. This paragraph will govern to the extent it may conflict with any other provision of this Agreement.
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12. |
Judicial Modification. If the final judgment of a court of competent jurisdiction declares that any term or provision of Section 10 or 11 is invalid or unenforceable, the parties agree that (a) the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or geographic area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, (b) the parties shall request that the court exercise that power, and (c) this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment or decision may be appealed. |
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14. |
Representations and Warranties. Participant represents and warrants to the Corporation that Participant has received a copy of the Plan and this Agreement, has read and understands the terms of the Plan and this Agreement, and agrees to be bound by their terms and conditions in all respects. |
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15. |
No Limitation on the Corporation’s Rights. The granting of Restricted Stock Units under this Agreement shall not and will not in any way affect the Corporation’s right or power to make adjustments, reclassifications or changes in its capital or business structure or to |
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merge, consolidate, reincorporate, dissolve, liquidate or sell or transfer all or any part of its business or assets. |
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16. |
Plan and Agreement Not a Contract of Employment or Service. Neither the Plan nor this Agreement is a contract of employment or Service, and no terms of Participant’s employment or Service will be affected in any way by the Plan, this Agreement or related instruments, except to the extent specifically expressed therein. Neither the Plan nor this Agreement will be construed as conferring any legal rights on Participant to continue to be employed or remain in Service, nor will it interfere with the Corporation’s or any Affiliate’s right to discharge Participant or to deal with Participant regardless of the existence of the Plan or this Agreement. |
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17. |
Entire Agreement and Amendment. This Agreement and the Plan constitute the entire agreement between the parties hereto with respect to the Restricted Stock Units, and all prior oral and written representations are merged in this Agreement and the Plan. Notwithstanding the preceding sentence, this Agreement shall not in any way affect the terms and provisions of the Plan. This Agreement may be amended, modified, or terminated only in accordance with the Plan. The headings in this Agreement are inserted for convenience and identification only and are not intended to describe, interpret, define or limit the scope, extent, or intent of this Agreement or any provision hereof. |
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19. |
Successors and Assigns. The terms of this Agreement will be binding upon the Corporation and its successors and assigns. |
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20. |
Governing Law. To the extent not preempted by Federal law, the Plan, this Agreement, and documents evidencing rights relating to the Plan or this Agreement will be construed, administered and governed in all respects under and by the laws of the State of Delaware, without giving effect to its conflict of laws principles. If any provision of this Agreement will be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions hereof will continue to be fully effective. The jurisdiction and venue for any disputes arising under, or any action brought to enforce (or otherwise relating to), this Agreement will be exclusively in the courts in the State of Illinois, County of Cook, including the Federal Courts located therein (should Federal jurisdiction exist). |
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21. |
Plan Document Controls. The rights granted under this Agreement are in all respects subject to the provisions set forth in the Plan to the same extent and with the same effect as if set forth fully in this Agreement. If the terms of this Agreement conflict with the terms of the Plan document, the Plan document will control. |
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22. |
Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument. |
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23. |
Waiver; Cumulative Rights. The failure or delay of either party to require performance by the other party of any provision of this Agreement will not affect its right to require performance of such provision unless and until such performance has been waived in writing. Each right under this Agreement is cumulative and may be exercised in part or in whole from time to time. |
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24. |
Tax Consequences.Participant agrees to determine and be responsible for all tax consequences to Participant with respect to the Restricted Stock Units. |
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25. |
Section 409A. The Restricted Stock Units granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A, including the exceptions and exemptions for short term deferrals, stock rights, and separation pay arrangements. This Agreement and all Restricted Stock Units shall be administered, interpreted, and construed in a manner consistent with Section 409A. Should any provision of this Agreement, or any other agreement or arrangement contemplated by this Agreement, be found not to comply with, or otherwise be exempt from, the provisions of Section 409A, such provision shall be modified and given effect (retroactively if necessary), in the sole discretion of the Corporation, and without the consent of Participant, in such manner as the Corporation determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A. Notwithstanding the forgoing, no provision of this Agreement, or any other agreement or arrangement contemplated by this Agreement shall be construed as a guarantee by the Corporation of any particular tax effect to Participant. Each payment made under this Agreement shall be designated as a separate payment within the meaning of Section 409A. Any payment that is subject to Section 409A and payable upon Participant’s termination of employment or other similar event shall not be made unless Participant has experienced a “separation from service” as defined under Section 409A. Any payment subject to Section 409A that is to be made upon a “separation from service” to Participant on any date when he or she is a “specified employee” as defined under Section 409A shall not be paid before the date that is six (6) months following Participant’s “separation from service” or, if earlier, Participant’s death. |
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26. |
Awards Subject to the Corporation’s Recovery of Funds Policy. Notwithstanding anything in this Agreement to the contrary, the Restricted Stock Units covered by this Agreement shall be subject to the Corporation’s compensation recovery policy, as may be in effect from time to time, including, without limitation, the provisions of any such policy required by Section 10D of the Exchange Act and any applicable rules or regulations issued by the SEC or any national securities exchange or national securities association on which the Stock may be traded. |
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27. |
Addendum to Agreement. Notwithstanding any provision of this Agreement to the contrary, if Participant resides or is employed outside the U.S. or transfers residence or employment outside the U.S., the Restricted Stock Units shall be subject to such special terms and conditions as are set forth in the addendum to this agreement (the “Addendum”). Further, if Participant transfers residency and/or employment to another country, any special terms and conditions for such country will apply to the Restricted Stock Units to the extent the Corporation determines, in its sole discretion, that the application of such terms and conditions is necessary or advisable in order to comply with local law or to facilitate the operation and administration of the Restricted Stock Units and the Plan (or the Corporation may establish alternative terms and conditions as may be necessary or advisable to accommodate Participant’s transfer). In all circumstances, the Addendum shall constitute part of this Agreement. |
IN WITNESS WHEREOF, the Corporation and Participant have duly executed this Agreement as of the date first written above.
Cboe Global Markets, Inc.
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Edward T. Tilly |
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Participant’s Name |
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_______________________________________ |
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Participant’s Signature |
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10
Exhibit A
Vesting of the Restricted Stock Units is contingent on achievement of a Performance Goal tied to Total Shareholder Return of the Corporation as compared to the Total Shareholder Return of the S&P 500 Index during the Performance Period. The number of Restricted Stock Units that may vest shall be determined as set forth below:
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TSR Percentile Attained |
Percentage of Restricted Stock Units That Vest |
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[__]th percentile (“Maximum”) or greater |
[__]% |
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[__]th percentile (“Target”) |
[__]% |
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[__]th percentile (“Threshold”) |
[__]% |
For TSR Percentile performance levels that fall between the values shown above, the percentage of Restricted Stock Units that vest will be determined by straight line interpolation, provided that no Restricted Stock Units will vest if the Corporation’s TSR Percentile does not equal or exceed the Threshold amount.
“Total Shareholder Return” means, with respect to any corporation, the increase in its stock price over the Performance Period plus reinvested dividends, divided by its stock price at the beginning of the Performance Period. For purposes of this definition, the beginning stock price will be the average closing price over the twenty (20) trading days up to and including [__], and the ending stock price will be the average closing price over the twenty (20) trading days up to and including [__].
“TSR Percentile” means the Corporation’s Total Shareholder Return during the Performance Period relative to the Total Shareholder Returns for the S&P 500 Index during the Performance Period.
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ADDENDUM
CBOE GLOBAL MARKETS, INC. LONG-TERM INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Addendum to the Agreement includes additional terms and conditions that govern the Restricted Stock Units if Participant resides and/or is employed outside of the United States or transfers residence or employment outside the United States. Certain capitalized terms used but not defined in this Addendum have the meanings set forth in the Agreement or the Plan.
1.Nature of Grant. In accepting the Restricted Stock Units, Participant acknowledges that:
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(a) |
the Plan is established voluntarily by the Corporation, is discretionary in nature and may be modified, amended, suspended or terminated by the Corporation at any time, to the extent permitted by the Plan; |
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(b) |
the award of the Restricted Stock Units is exceptional, discretionary, voluntary and occasional and does not create any contractual or other right to receive future grants of Restricted Stock Units, or benefits in lieu of Restricted Stock Units, even if Restricted Stock Units have been granted in the past; |
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(c) |
all decisions with respect to future Restricted Stock Unit awards, if any, will be at the sole discretion of the Corporation; |
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(d) |
Participant is voluntarily participating in the Plan; |
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(f) |
the Restricted Stock Unit award will not be interpreted to form an employment contract or relationship with the Corporation or any Affiliate, nor does it amend any legal relationship or legal entitlement between Participant and the Employer; |
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(g) |
this Agreement, the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of Participant’s further employment for the vesting period, for any period, or at all, and will not interfere with Participant’s right or the right of the Corporation or the Employer to terminate Participant’s employment relationship at any time with or without cause; |
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(h) |
unless otherwise agreed with the Corporation, the Restricted Stock Units and the shares of Stock underlying the Restricted Stock Units, and the income and value of same, are not granted as consideration for, or in connection with, the service Participant may provide as a director of an Affiliate; |
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(i) |
the future value of the underlying shares of Stock is unknown, indeterminable and cannot be predicted with certainty; |
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(j) |
neither the Corporation, the Employer nor any Affiliate shall be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States Dollar that may affect the value of the Restricted Stock Units or of any amounts due to Participant pursuant to the settlement of the Restricted Stock Units or the sale of any shares of Stock Participant may acquire upon such settlement; |
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(k) |
in consideration of the grant of the Restricted Stock Units, no claim or entitlement to compensation or damages shall arise from termination of the Restricted Stock Units or diminution in value of the Restricted Stock Units or shares of Stock acquired upon vesting of the Restricted Stock Units resulting from Participant’s termination of Service (for any reason whatsoever and whether or not in breach of local labor laws) and Participant irrevocably releases the Corporation and the Employer from any such claim that may arise; and |
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(l) |
the Restricted Stock Units and the benefits evidenced by this Agreement do not create any entitlement not otherwise specifically provided for in the Plan or provided by the Corporation in its discretion, to have the Restricted Stock Units or any such benefits transferred to, or assumed by, another company or to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Corporation. |
2.Participants in the European Union. If Participant resides and/or is employed in a European Union (“EU”) member state, the following provision shall replace Section 4(a) of the Agreement in its entirety and any other provisions regarding Retirement Vesting shall be disregarded and of no effect:
(a)Subject to Sections 4(b), 4(c) and 4(d) below, Participant’s Restricted Stock Units will vest upon the expiration of the Performance Period, subject to and contingent upon achievement of the Performance Goal described in Exhibit A hereto and Participant’s continued Service through the last day of the Performance Period.
3.Payment of Withholding Taxes. Participant acknowledges and agrees that if Participant is subject to tax and/or social contributions in more than one jurisdiction, the Corporation or its Affiliate(s) may be required to withhold or account for taxes and/or social contributions in more than one jurisdiction, in accordance with the methods of withholding described in Section 8 of the Agreement.
4.Data Privacy.
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(a) |
Data Collection and Usage. The Corporation and the Employer will collect, process and use certain personal information about Participant, specifically, Participant’s name, home address, email address and telephone number, date of birth, social security or insurance number, passport number or other identification number, salary, nationality, job title, any shares of Stock or directorships held in the Corporation, details of all Restricted Stock Units or any other entitlement to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan. |
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(b) |
Recipients of Data. |
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a. |
Stock Plan Administration Service Providers. The Corporation and the Employer transfer Data to Fidelity Stock Plan Services, LLC (and/or its affiliates, collectively “Fidelity”), the designated broker assisting in the implementation, administration and management of the Plan. In the future, the Corporation may select a different service provider and share Data with such other provider serving in a similar manner. |
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Other Service Provider Data Recipients. The Corporation also may transfer Data to other third party service providers, if necessary to ensure compliance with applicable tax, exchange control, securities and labor law. Such third party service providers may include the Corporation’s legal counsel as well as its auditor, human resources consultant and payroll vendor. Wherever possible, the Corporation will anonymize data, but Participant understands that his or her Data may need to be transferred to such providers to ensure compliance with applicable law and/or tax requirements. |
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c. |
Securities or Other Regulatory Authorities. In addition to the recipients identified herein and where required under applicable law, Data also may be disclosed to certain securities or other regulatory authorities, including where the Corporation’s securities are listed or traded or regulatory filings are made. The legal basis, where required, for such disclosure is compliance with applicable law. |
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(c) |
International Data Transfers. The Corporation, Fidelity and other service providers described above are located in the United States. The United States may have different data privacy laws and protections than Participant’s country of residence (or country of employment, if different). |
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(d) |
Legal Basis for Collection, Processing and Transfer of Data. |
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a. |
Participants within the EU / European Economic Area (“EEA”) |
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i. |
The collection, processing and transfer of Data is necessary for the legitimate purpose of the Corporation and Employer’s administration of the Plan and Participant’s participation in the Plan. |
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ii. |
When transferring Data to potential recipients outside the EU/EEA, the Corporation and the Employer strive to provide appropriate safeguards in accordance with EU Standard Contractual Clauses, the EU-U.S. Privacy Shield Framework, or other legally binding and |
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permissible arrangements. For further information on the transfer of the Participant’s personal data outside of the EU/EEA, the Participant may contact his or her human resources representative. |
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b. |
Participants outside the EU / EEA |
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ii. |
Participation in the Plan is voluntary and Participant understands that Participant is providing the consent herein on a purely voluntary basis. If Participant does not consent, or later seeks to revoke his or her consent, Participant’s employment status or service and career with the Employer will not be adversely affected. The only consequence of refusing or withdrawing consent is that the Corporation would not be able to grant Restricted Stock Units or other equity awards to Participant or administer or maintain such awards. Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan. For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that Participant may contact his or her human resources representative. |
(e)Data Retention. Participant understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan or comply with applicable laws. When the Corporation no longer needs the Data, the Corporation will remove it from its systems.
(f) Data Subject Rights. Participant understands that Participant may have the right under applicable law to (i) access or copy Data that the Corporation possesses, (ii) rectify incorrect Data, (iii) delete Data, (iv) restrict processing of Data, (v) opt out of the Plan, or (vi) lodge complaints with the competent supervisory authorities in Participant’s jurisdiction. To receive clarification regarding these rights or to exercise these rights, Participant understands that Participant can contact his or her local human resources representative.
5.No Advice Regarding Grant. The Corporation is not providing any tax, legal or financial advice, nor is the Corporation making any recommendations regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying shares of Stock. Participant should consult with his or her own personal tax, legal and financial
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advisors regarding Participant’s participation in the Plan before taking any action related to the Plan.
6.Imposition of Other Requirements. The Corporation reserves the right to impose other requirements on Participant’s participation in the Plan, on the Restricted Stock Units and on any shares of Stock acquired under the Plan, to the extent the Corporation determines it is necessary or advisable for legal or administrative reasons. Such requirements may include (but are not limited to) requiring Participant to sign any agreements or undertakings that may be necessary to accomplish the foregoing.
7.Insider Trading/Market Abuse Laws. By participating in the Plan, Participant agrees to comply with the Corporation’s policy on insider trading (to the extent that it is applicable to Participant). Participant further acknowledges that, depending on Participant’s or the broker’s country of residence or where the shares of Stock are listed, Participant may be subject to insider trading restrictions and/or market abuse laws, which may affect Participant’s ability to accept, acquire, sell or otherwise dispose of shares of Stock, rights to shares of Stock (e.g., Restricted Stock Units) or rights linked to the value of shares of Stock, during such times Participant is considered to have “inside information” regarding the Corporation as defined by the laws or regulations in Participant’s country. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders Participant places before Participant possessed inside information. Furthermore, Participant could be prohibited from (i) disclosing the inside information to any third party (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Participant understands that third parties include fellow employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Corporation insider trading policy. Participant acknowledges that it is Participant’s responsibility to comply with any applicable restrictions, and that Participant should therefore consult Participant’s personal advisor on this matter.
8.Foreign Asset/Account Reporting; Exchange Controls. Participant’s country may have certain foreign asset and/or account reporting requirements and/or exchange controls which may affect Participant’s ability to acquire or hold shares of Stock under the Plan or cash received from participating in the Plan (including from any dividends received or sale proceeds arising from the sale of shares of Stock) in a brokerage or bank account outside Participant’s country. Participant may be required to report such accounts, assets or transactions to the tax or other authorities in his or her country. Participant also may be required to repatriate sale proceeds or other funds received as a result of Participant’s participation in the Plan to his or her country through a designated bank or broker and/or within a certain time after receipt. Participant acknowledges that it is his or her responsibility to be compliant with such regulations, and Participant should consult his or her personal legal advisor for any details.
9.Language. If Participant is resident in a country where English is not an official language, Participant acknowledges that the Participant is sufficiently proficient in English to understand the terms and conditions of the Agreement or has had the ability to consult with an advisor who is sufficiently proficient in the English language. The Participant further
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acknowledges and agrees that it is Participant’s express intent that the Agreement, the Addendum and the Plan and all other documents, notices and legal proceedings entered into, given or instituted pursuant to the Restricted Stock Units be drawn up in English. If Participant has received the Agreement, the Addendum or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
10.Annex to Addendum. Notwithstanding any provision of the Agreement or Addendum to the contrary, the Restricted Stock Units shall be subject to such special terms and conditions for Participant’s country of residence (and country of employment, if different), as are set forth in the annex to this Addendum (the “Annex”). Further, if Participant transfers residency and/or employment to another country, the Corporation may establish alternative terms and conditions as may be necessary or advisable to accommodate Participant’s transfer. In all circumstances, the Annex shall constitute part of this Addendum.
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ANNEX
This Annex to the Addendum includes additional terms and conditions that govern the Restricted Stock Units if Participant resides and/or is employed in the country addressed herein or transfers residence or employment to the country addressed herein. If Participant transfers residence and/or employment to another country, the Corporation may establish alternative terms and conditions as may be necessary or advisable to accommodate Participant’s transfer. Certain capitalized terms used but not defined in this Annex have the meanings set forth in the Agreement (including the Addendum) or the Plan.
Canada
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1. |
Securities Law Notification: Participant acknowledges and agrees that he or she is permitted to sell shares of Stock acquired under the Plan through the designated broker appointed under the Plan, provided the resale of shares of Stock takes place outside of Canada through facilities of a stock exchange on which the shares of Stock are listed. The shares of Stock currently are listed on Cboe BZX in the United States. |
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2. |
Termination of Employment: Except as expressly required by applicable legislation, in the event Participant’s Service is terminated for any reason other than as described in Section 3(c) of the Agreement (whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any), Participant understands his or her right to participate in the Plan will terminate effective as of the date that is the earliest of (i) termination of Participant’s Service; (ii) the date upon which Participant receives written notice of termination; or (iii) the date Participant is no longer actively providing services to the Corporation or any of its Affiliates regardless of any notice period or period of pay in lieu of such notice mandated under applicable laws (including, but not limited to, statutory law and/or common law). Participant further understands that, in the event that the date that Participant is no longer actively providing services cannot be reasonably determined under the terms of the Agreement and the Plan, the Committee shall have the exclusive discretion to determine when Participant is no longer actively providing services for purposes of the Plan (including whether the Participant still may be considered to be providing services while on a leave of absence). |
Ecuador
No country-specific provisions.
Hong Kong
1.Settlement in Shares of Stock. Notwithstanding anything to the contrary in the Agreement, the Addendum or the Plan, the Restricted Stock Units shall be settled only in shares of Stock (and may not be settled in cash).
2.Disposal of Shares of Stock. If, for any reason, shares of Stock are issued to Participant within six (6) months after the Award Date, Participant agrees that Participant will not sell
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or otherwise dispose of any such shares of Stock prior to the six (6) month anniversary of the Award Date.
3.IMPORTANT NOTICE/WARNING. The contents of this document have not been reviewed by any regulatory authority in Hong Kong. Participant is advised to exercise caution in relation to the offer. If Participant is in any doubt about any of the contents of the documents, Participant should obtain independent professional advice. The Restricted Stock Units and shares of Stock issued in settlement of the Restricted Stock Units do not constitute a public offering of securities under Hong Kong law and are available only to employees of the Corporation or its Affiliates. The Agreement, the Plan and other incidental communication materials have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in Hong Kong. The Restricted Stock Units are intended only for the personal use of each eligible employee of the Employer, the Corporation or an Affiliate and may not be distributed to any other person.
4.Wages. The Restricted Stock Units and shares of Stock subject to the Restricted Stock Units do not form part of Participant’s wages for purposes of calculating any statutory or contractual payments under Hong Kong law.
Netherlands
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1. |
Exclusion of Claim: Participant acknowledges and agrees that Participant will have no entitlement to compensation or damages insofar as such entitlement arises or may arise from Participant ceasing to have rights under the Plan, whether or not as a result of termination of Participant’s Service (whether such termination is in breach of contract or otherwise), or from the loss of diminution in value of the shares of Stock underlying the Restricted Stock Units. Upon the grant of the Restricted Stock Units, Participant shall be deemed to have waived irrevocably such entitlement. |
Singapore
1.Securities Law Information. The grant of the Restricted Stock Units under the Plan is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the Securities and Futures Act (Chapter 289, 2006 Ed.) (“SFA”). The Plan has not been and will not be lodged or registered as a prospectus with the Monetary Authority of Singapore and is not regulated by any financial supervisory authority pursuant to any legislation in Singapore. Accordingly, statutory liability under the SFA in relation to the content of prospectuses would not apply. Participant should note that the Restricted Stock Units are subject to section 257 of the SFA and Participant will not be able to make any subsequent sale of shares of Stock in Singapore, or any offer of such subsequent sale of shares of Stock subject to the Restricted Stock Units in Singapore, unless such sale or offer is made (i) after six (6) months from the Award Date or (ii) pursuant to the exemptions under Part XIII Division (1) Subdivision (4) (other than section 280) of the SFA.
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Switzerland
1.Securities Law Information. Neither the Agreement nor any other materials relating to the grant of Restricted Stock Units (a) constitutes a prospectus according to articles 35 et seq. of the Swiss Federal Act on Financial Services (“FinSA”), (b) may be publicly distributed or otherwise made publicly available in Switzerland to any person other than an employee of the Corporation or (c) has been or will be filed with, approved or supervised by any Swiss reviewing body according to article 51 FinSA or any Swiss regulatory authority, including the Swiss Financial Market Supervisory Authority, FINMA.
United Kingdom (Including Northern Ireland)
1.Payment of Withholding Taxes. The following provision supplements the section of the Agreement titled “Payment of Withholding Taxes”:
Without limitation to the section of the Agreement titled ‘Payment of Withholding Taxes’, Participant agrees that Participant is liable for all income tax and employee national insurance contributions or other social contributions or withholding taxes (“Tax-Related Items”) and hereby covenants to pay all such Tax-Related Items, as and when requested by the Corporation, the Employer or by Her Majesty’s Revenue and Customs (“HMRC”) (or any other tax authority or any other relevant authority). Participant also agrees to indemnify and keep indemnified the Corporation and the Employer against any Tax-Related Items that they are required to pay or withhold or have paid or will pay on Participant’s behalf to HMRC (or any other tax authority or any other relevant authority).
Notwithstanding the foregoing, if Participant is a director or executive officer (as within the meaning of Section 13(k) of the U.S. Securities Exchange Act of 1934, as amended), the terms of the immediately foregoing provision will not apply. In the event that Participant is a director or executive officer and income tax due is not collected from or paid by Participant within 90 days after the U.K. tax year in which an event giving rise to the indemnification described above occurs, the amount of any uncollected tax may constitute a benefit to Participant on which additional income tax and national insurance contributions may be payable. Participant acknowledges that Participant ultimately will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for reimbursing the Corporation or the Employer (as applicable) for the value of any employee national insurance contributions due on this additional benefit, which the Corporation and/or the Employer may recover from Participant at any time thereafter by any of the means referred to in section of the Agreement titled “Payment of Withholding Taxes”.
2.Exclusion of Claim. Participant acknowledges and agrees that Participant will have no entitlement to compensation or damages insofar as such entitlement arises or may arise
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from Participant’s ceasing to have rights under or to be entitled to the Restricted Stock Units, whether or not as a result of termination of Service (whether such termination is in breach of contract or otherwise), or from the loss or diminution in value of the Restricted Stock Units. Upon the award of the Restricted Stock Units, Participant shall be deemed irrevocably to have waived any such entitlement.
3.Section 2 of the Addendum. Section 2 of the Addendum (Participants in the European Union) shall not apply to the Restricted Stock Units.
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Exhibit 10.3
CBOE GLOBAL MARKETS, INC. LONG-TERM INCENTIVE PLAN
Restricted Stock Unit Award Agreement – Performance Based
This Restricted Stock Unit Award Agreement (this “Agreement”) is dated effective _______________________, (the “Award Date”), and is between Cboe Global Markets, Inc. (the “Corporation”) and Edward T. Tilly (“Participant”). Any term capitalized but not defined in this Agreement will have the meaning set forth in the Second Amended and Restated Cboe Global Markets, Inc. (formerly CBOE Holdings, Inc.) Long-Term Incentive Plan (as may be amended from time to time, the “Plan”).
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1. |
Award. The Corporation hereby awards to Participant [___] Restricted Stock Units (the “Restricted Stock Units”). The Restricted Stock Units will be subject to the terms and conditions of the Plan and this Agreement. Each Restricted Stock Unit is a notional amount that represents one unvested share of Stock and entitles Participant, subject to the terms of this Agreement, to receive a share of Stock if and when the Restricted Stock Unit vests. |
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2. |
No Rights as Stockholder; Dividend Equivalents. Participant shall have no voting rights with respect to shares of Stock represented by Restricted Stock Units until the date of the issuance of the shares of Stock (as evidenced by the appropriate entry on the books of the Corporation or of a duly authorized transfer agent of the Corporation). Notwithstanding the foregoing, in the event that the Corporation declares a cash dividend on shares of Stock, on the payment date of the dividend, Participant will be credited with Dividend Equivalent Rights equal to the amount of the cash dividend per share multiplied by the number of Restricted Stock Units held by Participant on the dividend’s record date. The Dividend Equivalent Rights credited to Participant under the preceding sentence will be deemed to be reinvested in additional Restricted Stock Units, which will be subject to the same terms regarding vesting, forfeiture, and distribution as Restricted Stock Units awarded to Participant under this Agreement. |
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3. |
Performance Period. The Performance Period for the Restricted Stock Units shall be the three (3) year period commencing on [__] and ending on [__]. |
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(a) Subject to Sections 4(b) and 4(c) below, Participant’s Restricted Stock Units will vest upon the expiration of the Performance Period, subject to and contingent upon achievement of the Performance Goal described in Exhibit A hereto and Participant’s continued Service through the last day of the Performance Period. Notwithstanding the foregoing, if Participant attains at least age fifty-five (55) and completes at least ten (10) years of Service (“Retirement Vesting”) and subsequently retires or Participant’s service is terminated (other than pursuant to an event described in Section 4(b) or 4(c) below) prior to expiration of the Performance Period, Participant shall be entitled to receive: (I) if Participant retires or voluntarily terminates Service on or prior to December 31, 2022 (i) the number of Restricted Stock Units that would have vested in accordance with the preceding sentence based on the level of achievement of the Performance Goal actually achieved if Participant had continued Service through the last day of the Performance Period, multiplied by (ii) a fraction, the numerator of which is the number of days during |
the Performance Period on which Participant was providing Service, and the denominator of which is 1,095 or (II) if Participant retires or voluntarily terminates Service on or after January 1, 2023 or in the event of a termination of Participant’s Service by the Corporation or its Affiliate without Cause or by Participant for “Good Reason” (as defined below) at any time during the Performance Period, the number of Restricted Stock Units that would have vested in accordance with the preceding sentence based on the level of achievement of the Performance Goal actually achieved if Participant had continued Service through the last day of the Performance Period. |
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(b) The Restricted Stock Units will vest at the Target level of achievement of the Performance Goal (as described in Exhibit A), upon the earlier to occur of (i) Participant’s death or (ii) Participant’s becoming Disabled, provided that such condition qualifies as “disability” as defined for purposes of Section 409A, in each case, if prior to any forfeiture event under Section 4(d) below. |
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(c) This subsection 4(c) shall apply to this Agreement, this Award and any Replacement Award provided to Participant to replace this Award in lieu of Section 8.2(b) of the Plan. Upon a termination of Participant’s Service by the Corporation or its Affiliate without Cause or by Participant for “Good Reason” (as defined below), in each case, upon or within two years after a Change in Control and prior to any forfeiture event under Section 4(d) below, this Award or any Replacement Award held by Participant shall become fully vested and free of restrictions at the Target level of achievement of the Performance Goal (as described in Exhibit A, as amended by the Replacement Award, if any), except that vesting shall be, to the extent determinable, at the level of achievement of the Performance Goal actually achieved as of the date of termination of Service (with similar performance assumed to be achieved through the remainder of the Performance Period) if greater than the Target level of achievement, and shall be distributed upon or within 60 days of such termination of Service. Notwithstanding the foregoing, if this Award or the Replacement Award, as applicable, is considered deferred compensation subject to Section 409A, payment shall be made pursuant to the Award’s original schedule if necessary to comply with Section 409A. |
For purposes of this Award “Good Reason” shall be deemed to exist if, and only if, without the Participant’s express written consent:
(i) The Corporation or its Affiliate assigns to Participant authorities, duties or responsibilities (including titles) that are inconsistent in any material and adverse respect with Participant’s immediately preceding authorities, duties or responsibilities with the Corporation or its Affiliate (including any material and adverse diminution of such immediately preceding authorities, duties or responsibilities);
(ii) The Corporation or its Affiliate materially reduces Participant’s base compensation;
(iii) The Corporation or its Affiliate requires Participant to relocate his or her principal business office or principal place of residence outside the Chicago metropolitan area (or outside the immediately preceding location of Participant’s principal business
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office with the Corporation or its Affiliate), or assigns to Participant duties that would reasonably require such relocation;
(iv) The Corporation or its Affiliate materially breaches the terms of any agreement pursuant to which services are provided to the Corporation or its Affiliate by Participant; or
(v) The Corporation or its Affiliate terminates, reduces or limits Participant’s participation in any bonus or incentive compensation arrangement relative to the level of participation of other employees of similar rank for a reason that is not reasonably related to Participant’s level of job performance and provided that such action results in a material reduction in the aggregate value of Participant’s incentive compensation below the aggregate value as of the immediately preceding bonus or incentive compensation performance period.
Participant’s voluntary termination of Service shall not be considered a termination of Service for Good Reason unless Participant terminates his or her Service within 120 days after the initial existence of the condition constituting Good Reason; provided, Participant provides written notice to the Corporation or its Affiliate of Participant’s intention to resign for Good Reason, which notice specifies in reasonable detail the breach or action giving rise thereto within 90 days of its initial existence, and the Corporation or its Affiliate does not cure such breach or action within 30 days after the date of the Participant’s notice.
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(d) If Participant’s Service is terminated for any reason before all of Participant’s Restricted Stock Units have vested under this Agreement (including pursuant to an event described in Section 4(b) or 4(c) above), Participant’s unvested Restricted Stock Units will be forfeited upon the effective date of such termination of Service. Neither the Corporation nor any Affiliate will have any further obligations to Participant under this Agreement if Participant’s Restricted Stock Units are forfeited. |
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5. |
Terms and Conditions of Distribution. |
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(a) Distribution of a share of Stock that corresponds to a vested Restricted Stock Unit (other than a Restricted Stock Unit that vested due to Retirement Vesting) shall be made to Participant as soon as practicable after the Restricted Stock Unit vests, but not later than two and a half (2½) months after the end of the calendar year in which the Restricted Stock Unit vests. |
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(b) Distribution of a share of Stock that corresponds to a Restricted Stock Unit that vested due to Retirement Vesting shall be made to Participant during the two and a half (2½) months period after the end of the calendar year in which or with which the Performance Period expired or, if earlier, as soon as practicable following the earlier to occur of the following dates: (i) the date on which such Restricted Stock Unit would otherwise have vested in accordance with Section 4(b), or (ii) Participant’s “separation from service” as defined for purposes of Section 409A pursuant to Section 4(c) (or, if Participant is a “specified employee” as defined for purposes of Section 409A on the date |
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of such separation from service, the date that is the first day of the seventh (7th) month following Participant’s separation from service). |
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(c) If Participant dies before the date on which the Corporation would have distributed shares of Stock in satisfaction of vested Restricted Stock Units, the Corporation will distribute such shares of Stock to Participant’s designated beneficiary(ies) or, if none are designated or surviving, to Participant’s estate or personal representative. The Corporation is not required to issue or deliver any shares of Stock before completing the steps necessary to comply with applicable Federal and state securities laws (including any registration requirements) and applicable stock exchange rules and practices. The Corporation will use commercially reasonable efforts to cause compliance with those laws, rules and practices. The foregoing provisions are subject in all cases to the requirements of Section 409A. |
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Nontransferability. Unvested Restricted Stock Units may not be sold, transferred, exchanged, pledged, assigned, garnished, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Any effort to assign or transfer the rights under this Agreement will be wholly ineffective, and will be grounds for termination by the Committee of all rights of Participant under this Agreement. |
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Administration. The Committee administers the Plan. Participant’s rights under this Agreement are expressly subject to the terms and conditions of the Plan and to any guidelines the Committee adopts from time to time. The interpretation and construction by the Committee of the Plan and this Agreement, and such rules and regulations as may be adopted by the Committee for purposes of administering the Plan and this Agreement, will be final and binding upon Participant. |
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Securities Law Requirements. If at any time the Board or Committee determines that issuing Stock pursuant to this Agreement would violate applicable securities laws, the Corporation will not be required to issue such Stock. The Board or Committee may declare any provision of this Agreement or action of its own null and void, if it determines the provision or action fails to comply with applicable securities laws. The Corporation may require Participant to make written representations it deems necessary or desirable to comply with applicable securities laws. |
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Payment of Withholding Taxes. Distribution to Participant of shares of Stock under this Agreement will be subject to Federal income and other tax withholding (and state and local income tax withholding, or non-U.S. tax withholding, if applicable) by the Corporation in respect of taxes on income realized by Participant. The Corporation may withhold the minimum statutorily required amounts from future paychecks to Participant, or may require that Participant deliver to the Corporation the amounts to be withheld. Participant agrees to allow the Corporation, upon any payment of shares of Stock to Participant under this Agreement, to withhold a portion of the shares of Stock otherwise deliverable to Participant having a Fair Market Value of the minimum tax withholding obligation (or, in the discretion of the Corporation, to satisfy up to the maximum tax withholding obligation), in satisfaction of any Federal income and other tax withholding (and any state and local income tax withholding, or non-U.S. tax withholding, if applicable). Notwithstanding any provision herein to the contrary, in the event that any Restricted Stock Units become |
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subject to tax withholding before the shares of Stock subject to the Restricted Stock Units would otherwise be delivered to the Participant, the Corporation may issue a sufficient number of whole shares of Stock with respect to the Restricted Stock Units that does not exceed the minimum tax withholding obligation, which shares of Stock shall be withheld by the Corporation to satisfy its withholding obligation, in accordance with and subject to the requirements of Section 409A. |
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(a) singly, jointly, or in any other capacity, in a manner that contributes to any research, technology, development, account, trading, marketing, promotion, or sales and that relates to Participant’s Service with Cboe, directly or beneficially, manage, join, participate in the management, operation or control of, or work for (as an employee, consultant or independent contractor), or permit the use of his or her name by, or provide financial or other assistance to, or be connected in any manner with (i) any exchange, facility, electronic communications network (“ECN”), electronic foreign currency exchange market (“FX”) matching platform, multilateral trading facility, or alternative trading system (“ATS”); (ii) the ECN, ATS or FX business lines of any full service broker dealer; or (iii) any business line of any company that is substantially similar to any additional business line developed or entered into by Cboe during Participant’s Service, provided that, in the case of clauses (i), (ii) and (iii), such entity or business line that directly competes with Cboe; |
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(b) provide any service or assistance that (i) is of the general type of service or assistance provided by Participant to Cboe, (ii) relates to any technology, account, product, project or piece of work with which Participant was involved during his Service, and (iii) contributes to causing an entity to come within the definition described in Section 10(a) above; |
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(c) solicit or accept if offered to Participant, with or without solicitation, on his or her own behalf or on behalf of any other person, the services of any person who is a then-current employee of Cboe (or was an employee of Cboe during the year preceding such solicitation), nor solicit any of Cboe’s then-current employees (or an individual who was employed by or engaged by Cboe during the year preceding such solicitation) to terminate employment or an engagement with Cboe, nor agree to hire any then-current employee (or an individual who was an employee of Cboe during the year preceding such hire) of Cboe into employment with Participant or any company, individual or other entity; or |
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(d) directly or indirectly divert or attempt to divert from Cboe any business in which Cboe has been actively engaged during Participant’s Service, nor interfere with the relationships of Cboe or with their sources of business. |
Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prohibits Participant from confidentially or otherwise communicating or filing a charge or complaint with a governmental or regulatory entity, participating in a governmental or regulatory entity investigation, or giving truthful testimony or making other disclosures to a governmental or regulatory entity (in each case, without having to disclose any such conduct to the Corporation or an Affiliate), or from responding if properly subpoenaed or otherwise required to do so under applicable law. In addition, nothing in this Agreement limits Participant’s right to receive an award from a governmental or regulatory entity for information provided to such an entity (and not as compensation for actual or alleged personal injury or damages to Participant).
Pursuant to the Defend Trade Secrets Act of 2016 (18 U.S.C. 1833(b)), Participant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a federal, state, or local government official, or to an attorney, solely for the purpose of reporting or investigating a violation of law. Participant shall not be held criminally or
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civilly liable under any federal or state trade secret law for the disclosure of a trade secret made in a complaint, or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Participant files a lawsuit or other action alleging retaliation by the Corporation or an Affiliate for reporting a suspected violation of law, Participant may disclose the trade secret to his or her attorney and use the trade secret in the court proceeding or other action, if Participant files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order. This paragraph will govern to the extent it may conflict with any other provision of this Agreement.
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Judicial Modification. If the final judgment of a court of competent jurisdiction declares that any term or provision of Section 10 or 11 is invalid or unenforceable, the parties agree that (a) the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or geographic area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, (b) the parties shall request that the court exercise that power, and (c) this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment or decision may be appealed. |
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Representations and Warranties. Participant represents and warrants to the Corporation that Participant has received a copy of the Plan and this Agreement, has read and understands the terms of the Plan and this Agreement, and agrees to be bound by their terms and conditions in all respects. |
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No Limitation on the Corporation’s Rights. The granting of Restricted Stock Units under this Agreement shall not and will not in any way affect the Corporation’s right or power to make adjustments, reclassifications or changes in its capital or business structure or to |
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merge, consolidate, reincorporate, dissolve, liquidate or sell or transfer all or any part of its business or assets. |
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Plan and Agreement Not a Contract of Employment or Service. Neither the Plan nor this Agreement is a contract of employment or Service, and no terms of Participant’s employment or Service will be affected in any way by the Plan, this Agreement or related instruments, except to the extent specifically expressed therein. Neither the Plan nor this Agreement will be construed as conferring any legal rights on Participant to continue to be employed or remain in Service, nor will it interfere with the Corporation’s or any Affiliate’s right to discharge Participant or to deal with Participant regardless of the existence of the Plan or this Agreement. |
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Entire Agreement and Amendment. This Agreement and the Plan constitute the entire agreement between the parties hereto with respect to the Restricted Stock Units, and all prior oral and written representations are merged in this Agreement and the Plan. Notwithstanding the preceding sentence, this Agreement shall not in any way affect the terms and provisions of the Plan. This Agreement may be amended, modified, or terminated only in accordance with the Plan. The headings in this Agreement are inserted for convenience and identification only and are not intended to describe, interpret, define or limit the scope, extent, or intent of this Agreement or any provision hereof. |
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Successors and Assigns. The terms of this Agreement will be binding upon the Corporation and its successors and assigns. |
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20. |
Governing Law. To the extent not preempted by Federal law, the Plan, this Agreement, and documents evidencing rights relating to the Plan or this Agreement will be construed, administered and governed in all respects under and by the laws of the State of Delaware, without giving effect to its conflict of laws principles. If any provision of this Agreement will be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions hereof will continue to be fully effective. The jurisdiction and venue for any disputes arising under, or any action brought to enforce (or otherwise relating to), this Agreement will be exclusively in the courts in the State of Illinois, County of Cook, including the Federal Courts located therein (should Federal jurisdiction exist). |
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21. |
Plan Document Controls. The rights granted under this Agreement are in all respects subject to the provisions set forth in the Plan to the same extent and with the same effect as if set forth fully in this Agreement. If the terms of this Agreement conflict with the terms of the Plan document, the Plan document will control. |
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22. |
Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument. |
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23. |
Waiver; Cumulative Rights. The failure or delay of either party to require performance by the other party of any provision of this Agreement will not affect its right to require performance of such provision unless and until such performance has been waived in writing. Each right under this Agreement is cumulative and may be exercised in part or in whole from time to time. |
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24. |
Tax Consequences.Participant agrees to determine and be responsible for all tax consequences to Participant with respect to the Restricted Stock Units. |
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25. |
Section 409A. The Restricted Stock Units granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A, including the exceptions and exemptions for short term deferrals, stock rights, and separation pay arrangements. This Agreement and all Restricted Stock Units shall be administered, interpreted, and construed in a manner consistent with Section 409A. Should any provision of this Agreement, or any other agreement or arrangement contemplated by this Agreement, be found not to comply with, or otherwise be exempt from, the provisions of Section 409A, such provision shall be modified and given effect (retroactively if necessary), in the sole discretion of the Corporation, and without the consent of Participant, in such manner as the Corporation determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A. Notwithstanding the forgoing, no provision of this Agreement, or any other agreement or arrangement contemplated by this Agreement shall be construed as a guarantee by the Corporation of any particular tax effect to Participant. Each payment made under this Agreement shall be designated as a separate payment within the meaning of Section 409A. Any payment that is subject to Section 409A and payable upon Participant’s termination of employment or other similar event shall not be made unless Participant has experienced a “separation from service” as defined under Section 409A. Any payment subject to Section 409A that is to be made upon a “separation from service” to Participant on any date when he or she is a “specified employee” as defined under Section 409A shall not be paid before the date that is six (6) months following Participant’s “separation from service” or, if earlier, Participant’s death. |
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Awards Subject to the Corporation’s Recovery of Funds Policy. Notwithstanding anything in this Agreement to the contrary, the Restricted Stock Units covered by this Agreement shall be subject to the Corporation’s compensation recovery policy, as may be in effect from time to time, including, without limitation, the provisions of any such policy required by Section 10D of the Exchange Act and any applicable rules or regulations issued by the SEC or any national securities exchange or national securities association on which the Stock may be traded. |
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27. |
Addendum to Agreement. Notwithstanding any provision of this Agreement to the contrary, if Participant resides or is employed outside the U.S. or transfers residence or employment outside the U.S., the Restricted Stock Units shall be subject to such special terms and conditions as are set forth in the addendum to this agreement (the “Addendum”). Further, if Participant transfers residency and/or employment to another country, any special terms and conditions for such country will apply to the Restricted Stock Units to the extent the Corporation determines, in its sole discretion, that the application of such terms and conditions is necessary or advisable in order to comply with local law or to facilitate the operation and administration of the Restricted Stock Units and the Plan (or the Corporation may establish alternative terms and conditions as may be necessary or advisable to accommodate Participant’s transfer). In all circumstances, the Addendum shall constitute part of this Agreement. |
IN WITNESS WHEREOF, the Corporation and Participant have duly executed this Agreement as of the date first written above.
Cboe Global Markets, Inc.
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Edward T. Tilly |
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Participant’s Name |
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_____________________________________ |
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Participant’s Signature |
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Exhibit A
Vesting of the Restricted Stock Units is contingent upon achievement of a Performance Goal tied to Earnings Per Share for the Performance Period. The number of Restricted Stock Units that may vest shall be determined as set forth below:
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Earnings Per Share Attained |
Percentage of Restricted Stock Units That Vest |
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$[__] (“Maximum”) or greater |
[__]% |
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$[__] (“Target”) |
[__]% |
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$[__] (“Threshold”) |
[__]% |
For Earnings Per Share levels that fall between the values shown above, the percentage of Restricted Stock Units that vest will be determined by straight line interpolation, provided that no Restricted Stock Units will vest if the Corporation’s Earnings Per Share does not equal or exceed the Threshold amount.
“Earnings Per Share” means earnings per share calculated in accordance with generally accepted accounting principles, except that certain adjustments shall be made to eliminate the impact of infrequent, unusual, and/or non-recurring items, such as restructuring charges, significant share repurchase activity, significant income tax credits or charges, acquisitions and divestitures of businesses, asset impairments, and significant litigation settlements.
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ADDENDUM
CBOE GLOBAL MARKETS, INC. LONG-TERM INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Addendum to the Agreement includes additional terms and conditions that govern the Restricted Stock Units if Participant resides and/or is employed outside of the United States or transfers residence or employment outside the United States. Certain capitalized terms used but not defined in this Addendum have the meanings set forth in the Agreement or the Plan.
1.Nature of Grant. In accepting the Restricted Stock Units, Participant acknowledges that:
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(a) |
the Plan is established voluntarily by the Corporation, is discretionary in nature and may be modified, amended, suspended or terminated by the Corporation at any time, to the extent permitted by the Plan; |
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(b) |
the award of the Restricted Stock Units is exceptional, discretionary, voluntary and occasional and does not create any contractual or other right to receive future grants of Restricted Stock Units, or benefits in lieu of Restricted Stock Units, even if Restricted Stock Units have been granted in the past; |
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(c) |
all decisions with respect to future Restricted Stock Unit awards, if any, will be at the sole discretion of the Corporation; |
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(d) |
Participant is voluntarily participating in the Plan; |
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(f) |
the Restricted Stock Unit award will not be interpreted to form an employment contract or relationship with the Corporation or any Affiliate, nor does it amend any legal relationship or legal entitlement between Participant and the Employer; |
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(g) |
this Agreement, the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of Participant’s further employment for the vesting period, for any period, or at all, and will not interfere with Participant’s right or the right of the Corporation or the Employer to terminate Participant’s employment relationship at any time with or without cause; |
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(h) |
unless otherwise agreed with the Corporation, the Restricted Stock Units and the shares of Stock underlying the Restricted Stock Units, and the income and value of same, are not granted as consideration for, or in connection with, the service Participant may provide as a director of an Affiliate; |
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(i) |
the future value of the underlying shares of Stock is unknown, indeterminable and cannot be predicted with certainty; |
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(j) |
neither the Corporation, the Employer nor any Affiliate shall be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States Dollar that may affect the value of the Restricted Stock Units or of any amounts due to Participant pursuant to the settlement of the Restricted Stock Units or the sale of any shares of Stock Participant may acquire upon such settlement; |
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(k) |
in consideration of the grant of the Restricted Stock Units, no claim or entitlement to compensation or damages shall arise from termination of the Restricted Stock Units or diminution in value of the Restricted Stock Units or shares of Stock acquired upon vesting of the Restricted Stock Units resulting from Participant’s termination of Service (for any reason whatsoever and whether or not in breach of local labor laws) and Participant irrevocably releases the Corporation and the Employer from any such claim that may arise; and |
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(l) |
the Restricted Stock Units and the benefits evidenced by this Agreement do not create any entitlement not otherwise specifically provided for in the Plan or provided by the Corporation in its discretion, to have the Restricted Stock Units or any such benefits transferred to, or assumed by, another company or to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Corporation. |
2.Participants in the European Union. If Participant resides and/or is employed in a European Union (“EU”) member state, the following provision shall replace Section 4(a) of the Agreement in its entirety and any other provisions regarding Retirement Vesting shall be disregarded and of no effect:
(a)Subject to Sections 4(b), 4(c) and 4(d) below, Participant’s Restricted Stock Units will vest upon the expiration of the Performance Period, subject to and contingent upon achievement of the Performance Goal described in Exhibit A hereto and Participant’s continued Service through the last day of the Performance Period.
3.Payment of Withholding Taxes. Participant acknowledges and agrees that if Participant is subject to tax and/or social contributions in more than one jurisdiction, the Corporation or its Affiliate(s) may be required to withhold or account for taxes and/or social contributions in more than one jurisdiction, in accordance with the methods of withholding described in Section 8 of the Agreement.
4.Data Privacy.
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Data Collection and Usage. The Corporation and the Employer will collect, process and use certain personal information about Participant, specifically, Participant’s name, home address, email address and telephone number, date of birth, social security or insurance number, passport number or other identification number, salary, nationality, job title, any shares of Stock or directorships held in the Corporation, details of all Restricted Stock Units or any other entitlement to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan. |
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(b) |
Recipients of Data. |
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a. |
Stock Plan Administration Service Providers. The Corporation and the Employer transfer Data to Fidelity Stock Plan Services, LLC (and/or its affiliates, collectively “Fidelity”), the designated broker assisting in the implementation, administration and management of the Plan. In the future, the Corporation may select a different service provider and share Data with such other provider serving in a similar manner. |
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b. |
Other Service Provider Data Recipients. The Corporation also may transfer Data to other third party service providers, if necessary to ensure compliance with applicable tax, exchange control, securities and labor law. Such third party service providers may include the Corporation’s legal counsel as well as its auditor, human resources consultant and payroll vendor. Wherever possible, the Corporation will anonymize data, but Participant understands that his or her Data may need to be transferred to such providers to ensure compliance with applicable law and/or tax requirements. |
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Securities or Other Regulatory Authorities. In addition to the recipients identified herein and where required under applicable law, Data also may be disclosed to certain securities or other regulatory authorities, including where the Corporation’s securities are listed or traded or regulatory filings are made. The legal basis, where required, for such disclosure is compliance with applicable law. |
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International Data Transfers. The Corporation, Fidelity and other service providers described above are located in the United States. The United States may have different data privacy laws and protections than Participant’s country of residence (or country of employment, if different). |
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Legal Basis for Collection, Processing and Transfer of Data. |
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a. |
Participants within the EU / European Economic Area (“EEA”) |
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The collection, processing and transfer of Data is necessary for the legitimate purpose of the Corporation and Employer’s administration of the Plan and Participant’s participation in the Plan. |
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ii. |
When transferring Data to potential recipients outside the EU/EEA, the Corporation and the Employer strive to provide appropriate safeguards in accordance with EU Standard Contractual Clauses, the EU-U.S. Privacy Shield Framework, or other legally binding and |
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permissible arrangements. For further information on the transfer of the Participant’s personal data outside of the EU/EEA, the Participant may contact his or her human resources representative. |
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b. |
Participants outside the EU / EEA |
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ii. |
Participation in the Plan is voluntary and Participant understands that Participant is providing the consent herein on a purely voluntary basis. If Participant does not consent, or later seeks to revoke his or her consent, Participant’s employment status or service and career with the Employer will not be adversely affected. The only consequence of refusing or withdrawing consent is that the Corporation would not be able to grant Restricted Stock Units or other equity awards to Participant or administer or maintain such awards. Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan. For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that Participant may contact his or her human resources representative. |
(e)Data Retention. Participant understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan or comply with applicable laws. When the Corporation no longer needs the Data, the Corporation will remove it from its systems.
(f) Data Subject Rights. Participant understands that Participant may have the right under applicable law to (i) access or copy Data that the Corporation possesses, (ii) rectify incorrect Data, (iii) delete Data, (iv) restrict processing of Data, (v) opt out of the Plan, or (vi) lodge complaints with the competent supervisory authorities in Participant’s jurisdiction. To receive clarification regarding these rights or to exercise these rights, Participant understands that Participant can contact his or her local human resources representative.
5.No Advice Regarding Grant. The Corporation is not providing any tax, legal or financial advice, nor is the Corporation making any recommendations regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying shares of Stock. Participant should consult with his or her own personal tax, legal and financial
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advisors regarding Participant’s participation in the Plan before taking any action related to the Plan.
6.Imposition of Other Requirements. The Corporation reserves the right to impose other requirements on Participant’s participation in the Plan, on the Restricted Stock Units and on any shares of Stock acquired under the Plan, to the extent the Corporation determines it is necessary or advisable for legal or administrative reasons. Such requirements may include (but are not limited to) requiring Participant to sign any agreements or undertakings that may be necessary to accomplish the foregoing.
7.Insider Trading/Market Abuse Laws. By participating in the Plan, Participant agrees to comply with the Corporation’s policy on insider trading (to the extent that it is applicable to Participant). Participant further acknowledges that, depending on Participant’s or the broker’s country of residence or where the shares of Stock are listed, Participant may be subject to insider trading restrictions and/or market abuse laws, which may affect Participant’s ability to accept, acquire, sell or otherwise dispose of shares of Stock, rights to shares of Stock (e.g., Restricted Stock Units) or rights linked to the value of shares of Stock, during such times Participant is considered to have “inside information” regarding the Corporation as defined by the laws or regulations in Participant’s country. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders Participant places before Participant possessed inside information. Furthermore, Participant could be prohibited from (i) disclosing the inside information to any third party (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Participant understands that third parties include fellow employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Corporation insider trading policy. Participant acknowledges that it is Participant’s responsibility to comply with any applicable restrictions, and that Participant should therefore consult Participant’s personal advisor on this matter.
8.Foreign Asset/Account Reporting; Exchange Controls. Participant’s country may have certain foreign asset and/or account reporting requirements and/or exchange controls which may affect Participant’s ability to acquire or hold shares of Stock under the Plan or cash received from participating in the Plan (including from any dividends received or sale proceeds arising from the sale of shares of Stock) in a brokerage or bank account outside Participant’s country. Participant may be required to report such accounts, assets or transactions to the tax or other authorities in his or her country. Participant also may be required to repatriate sale proceeds or other funds received as a result of Participant’s participation in the Plan to his or her country through a designated bank or broker and/or within a certain time after receipt. Participant acknowledges that it is his or her responsibility to be compliant with such regulations, and Participant should consult his or her personal legal advisor for any details.
9.Language. If Participant is resident in a country where English is not an official language, Participant acknowledges that the Participant is sufficiently proficient in English to understand the terms and conditions of the Agreement or has had the ability to consult with an advisor who is sufficiently proficient in the English language. The Participant further
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acknowledges and agrees that it is Participant’s express intent that the Agreement, the Addendum and the Plan and all other documents, notices and legal proceedings entered into, given or instituted pursuant to the Restricted Stock Units be drawn up in English. If Participant has received the Agreement, the Addendum or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
10.Annex to Addendum. Notwithstanding any provision of the Agreement or Addendum to the contrary, the Restricted Stock Units shall be subject to such special terms and conditions for Participant’s country of residence (and country of employment, if different), as are set forth in the annex to this Addendum (the “Annex”). Further, if Participant transfers residency and/or employment to another country, the Corporation may establish alternative terms and conditions as may be necessary or advisable to accommodate Participant’s transfer. In all circumstances, the Annex shall constitute part of this Addendum.
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ANNEX
This Annex to the Addendum includes additional terms and conditions that govern the Restricted Stock Units if Participant resides and/or is employed in the country addressed herein or transfers residence or employment to the country addressed herein. If Participant transfers residence and/or employment to another country, the Corporation may establish alternative terms and conditions as may be necessary or advisable to accommodate Participant’s transfer. Certain capitalized terms used but not defined in this Annex have the meanings set forth in the Agreement (including the Addendum) or the Plan.
Canada
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Securities Law Notification: Participant acknowledges and agrees that he or she is permitted to sell shares of Stock acquired under the Plan through the designated broker appointed under the Plan, provided the resale of shares of Stock takes place outside of Canada through facilities of a stock exchange on which the shares of Stock are listed. The shares of Stock currently are listed on Cboe BZX in the United States. |
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Termination of Employment: Except as expressly required by applicable legislation, in the event Participant’s Service is terminated for any reason other than as described in Section 3(c) of the Agreement (whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any), Participant understands his or her right to participate in the Plan will terminate effective as of the date that is the earliest of (i) termination of Participant’s Service; (ii) the date upon which Participant receives written notice of termination; or (iii) the date Participant is no longer actively providing services to the Corporation or any of its Affiliates regardless of any notice period or period of pay in lieu of such notice mandated under applicable laws (including, but not limited to, statutory law and/or common law). Participant further understands that, in the event that the date that Participant is no longer actively providing services cannot be reasonably determined under the terms of the Agreement and the Plan, the Committee shall have the exclusive discretion to determine when Participant is no longer actively providing services for purposes of the Plan (including whether the Participant still may be considered to be providing services while on a leave of absence). |
Ecuador
No country-specific provisions.
Hong Kong
1.Settlement in Shares of Stock. Notwithstanding anything to the contrary in the Agreement, the Addendum or the Plan, the Restricted Stock Units shall be settled only in shares of Stock (and may not be settled in cash).
2.Disposal of Shares of Stock. If, for any reason, shares of Stock are issued to Participant within six (6) months after the Award Date, Participant agrees that Participant will not sell
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or otherwise dispose of any such shares of Stock prior to the six (6) month anniversary of the Award Date.
3.IMPORTANT NOTICE/WARNING. The contents of this document have not been reviewed by any regulatory authority in Hong Kong. Participant is advised to exercise caution in relation to the offer. If Participant is in any doubt about any of the contents of the documents, Participant should obtain independent professional advice. The Restricted Stock Units and shares of Stock issued in settlement of the Restricted Stock Units do not constitute a public offering of securities under Hong Kong law and are available only to employees of the Corporation or its Affiliates. The Agreement, the Plan and other incidental communication materials have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in Hong Kong. The Restricted Stock Units are intended only for the personal use of each eligible employee of the Employer, the Corporation or an Affiliate and may not be distributed to any other person.
4.Wages. The Restricted Stock Units and shares of Stock subject to the Restricted Stock Units do not form part of Participant’s wages for purposes of calculating any statutory or contractual payments under Hong Kong law.
Netherlands
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1. |
Exclusion of Claim: Participant acknowledges and agrees that Participant will have no entitlement to compensation or damages insofar as such entitlement arises or may arise from Participant ceasing to have rights under the Plan, whether or not as a result of termination of Participant’s Service (whether such termination is in breach of contract or otherwise), or from the loss of diminution in value of the shares of Stock underlying the Restricted Stock Units. Upon the grant of the Restricted Stock Units, Participant shall be deemed to have waived irrevocably such entitlement. |
Singapore
1.Securities Law Information. The grant of the Restricted Stock Units under the Plan is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the Securities and Futures Act (Chapter 289, 2006 Ed.) (“SFA”). The Plan has not been and will not be lodged or registered as a prospectus with the Monetary Authority of Singapore and is not regulated by any financial supervisory authority pursuant to any legislation in Singapore. Accordingly, statutory liability under the SFA in relation to the content of prospectuses would not apply. Participant should note that the Restricted Stock Units are subject to section 257 of the SFA and Participant will not be able to make any subsequent sale of shares of Stock in Singapore, or any offer of such subsequent sale of shares of Stock subject to the Restricted Stock Units in Singapore, unless such sale or offer is made (i) after six (6) months from the Award Date or (ii) pursuant to the exemptions under Part XIII Division (1) Subdivision (4) (other than section 280) of the SFA.
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Switzerland
1.Securities Law Information. Neither the Agreement nor any other materials relating to the grant of Restricted Stock Units (a) constitutes a prospectus according to articles 35 et seq. of the Swiss Federal Act on Financial Services (“FinSA”), (b) may be publicly distributed or otherwise made publicly available in Switzerland to any person other than an employee of the Corporation or (c) has been or will be filed with, approved or supervised by any Swiss reviewing body according to article 51 FinSA or any Swiss regulatory authority, including the Swiss Financial Market Supervisory Authority, FINMA.
United Kingdom (Including Northern Ireland)
1.Payment of Withholding Taxes. The following provision supplements the section of the Agreement titled “Payment of Withholding Taxes”:
Without limitation to the section of the Agreement titled ‘Payment of Withholding Taxes’, Participant agrees that Participant is liable for all income tax and employee national insurance contributions or other social contributions or withholding taxes (“Tax-Related Items”) and hereby covenants to pay all such Tax-Related Items, as and when requested by the Corporation, the Employer or by Her Majesty’s Revenue and Customs (“HMRC”) (or any other tax authority or any other relevant authority). Participant also agrees to indemnify and keep indemnified the Corporation and the Employer against any Tax-Related Items that they are required to pay or withhold or have paid or will pay on Participant’s behalf to HMRC (or any other tax authority or any other relevant authority).
Notwithstanding the foregoing, if Participant is a director or executive officer (as within the meaning of Section 13(k) of the U.S. Securities Exchange Act of 1934, as amended), the terms of the immediately foregoing provision will not apply. In the event that Participant is a director or executive officer and income tax due is not collected from or paid by Participant within 90 days after the U.K. tax year in which an event giving rise to the indemnification described above occurs, the amount of any uncollected tax may constitute a benefit to Participant on which additional income tax and national insurance contributions may be payable. Participant acknowledges that Participant ultimately will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for reimbursing the Corporation or the Employer (as applicable) for the value of any employee national insurance contributions due on this additional benefit, which the Corporation and/or the Employer may recover from Participant at any time thereafter by any of the means referred to in section of the Agreement titled “Payment of Withholding Taxes”.
2.Exclusion of Claim. Participant acknowledges and agrees that Participant will have no entitlement to compensation or damages insofar as such entitlement arises or may arise
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from Participant’s ceasing to have rights under or to be entitled to the Restricted Stock Units, whether or not as a result of termination of Service (whether such termination is in breach of contract or otherwise), or from the loss or diminution in value of the Restricted Stock Units. Upon the award of the Restricted Stock Units, Participant shall be deemed irrevocably to have waived any such entitlement.
3.Section 2 of the Addendum. Section 2 of the Addendum (Participants in the European Union) shall not apply to the Restricted Stock Units.
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