exv10w35






Exhibit 10.35




RESTRICTED STOCK UNIT AGREEMENT

PURSUANT TO THE

NYSE EURONEXT OMNIBUS INCENTIVE PLAN




[Form of Agreement for Certain Management Committee Members]



This Agreement (this “Agreement”) entered into on this [•] day of [•], 20__,
by and between NYSE Euronext (the “Company”) and [insert name] (the “Participant”).




WITNESSETH:



WHEREAS, the Company has adopted the NYSE Euronext Omnibus Incentive Plan (the “Plan”), which is
administered by the committee appointed by the Company’s Board of Directors (the “Committee”); and



WHEREAS, pursuant to Section 10.1 of the Plan, the Committee may grant restricted stock units to
the Participant, as an Eligible Employee.



NOW, THEREFORE, for and in consideration of the mutual promises herein contained, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:




1. Grant of Restricted Stock Units.



Subject to the restrictions and other conditions set forth herein and in the Plan, the Committee
has authorized this grant of [insert number of shares of Common Stock issuable on settlement of
award] restricted stock units (the “RSUs”) to the Participant on [insert date] (the “Grant Date”).




2. Vesting and Distribution Schedule.



Subject to Sections 3 and 7, (a) the RSUs shall vest [insert applicable vesting schedule, including
whether RSUs are scheduled to cliff vest or vest pro rata in tranches] and (b) on or as soon as
practicable following the applicable vesting date (and in all events not later than 60 days
following such date), the Company shall distribute to the Participant one share of Common Stock
(such shares, collectively, the “RSU Shares”) with respect to each RSU that vests on such date.
Upon any distribution of any of the RSU Shares under this Agreement, all obligations of the Company
with respect to the corresponding RSUs shall be deemed satisfied.




3. Termination of Employment.



Upon [(i)] a Termination of the Participant as a result of an Involuntary Termination (as defined
below), [Retirement], Disability or death [or (ii) a Change in Control], the number of RSUs
determined pursuant to the following sentence shall immediately become vested, and the Company
shall distribute to the Participant (or, in the event of death, to his or her estate) one RSU Share
for each vested RSU not later than 75 days following such Termination [or Change in Control];
provided that[, in the case of any such Termination,] such accelerated vesting and distribution
shall be subject to (i) any requirement set forth in an employment agreement entered into between
the Participant and the Company or an Affiliate that is in effect as of the date of





 









 







such Termination (the “Employment Agreement”) to execute and not revoke a release of claims or (ii)
if no such employment agreement is then in effect, the Participant’s execution (not later than 60
days after such Termination), and non revocation, of a legally sufficient release in a form then to
be provided by the Company. If the 75th day following such Termination occurs in the
calendar year following the year in which such Termination occurs, such distribution shall be made
in such following year. The number of RSUs that shall vest pursuant to this Section 3 shall equal
[insert applicable formula]. Upon a Termination of the Participant for any reason, any RSUs that
are unvested as of immediately prior to such Termination and that do not vest upon such Termination
shall be forfeited. “Involuntary Termination” shall have the meaning assigned to such term (or a
like term) in the Employment Agreement, or if no such agreement is in effect as of the date of
Termination, shall mean the Termination of the Participant by the Company or an Affiliate, without
Cause, including (without limitation) pursuant to a formal division, department or
organization-wide reduction in force. Each of the Committee and the Company’s senior Human
Resources officer (and any designee thereof) shall have the discretion to determine whether the
Participant’s employment has been terminated pursuant to an Involuntary Termination for purposes of
the Plan and this Agreement. Such decision shall be final and binding on the Participant, the
Company, its Affiliates and all of their respective successors and assigns. Notwithstanding any
contrary provision contained herein, in the event of the Participant’s Termination for Cause, all
RSUs that are unvested as of the Termination Date shall be forfeited.




4. Rights as a Stockholder; Transferability.



The Participant shall have no rights as a stockholder with respect to the RSU Shares, unless and
until the Participant has become the holder of record upon distribution of such Shares.
Adjustments shall be made for dividends in cash or other property, distributions or other rights
with respect to the RSUs or the RSU Shares only to the extent expressly provided in Section 10 or
the Plan. Unless and until the RSU Shares are distributed to the Participant, such RSU Shares
shall not be Transferable by the Participant.




5. Withholding.



The Participant shall pay, or make arrangements to pay, in a manner satisfactory to the Company, an
amount equal to the amount of all applicable federal, state and local or foreign taxes [, including
personal social security contributions,]1 [including, without limitation, withholding
obligations under the “pay as you earn” (PAYE) system and national insurance and social security
liabilities]2 that the Company is required to withhold at any time with respect to the
RSUs and the RSU Shares, including by the Company withholding a number of RSU Shares to be
delivered hereunder necessary to satisfy the minimum withholding obligations based on the Fair
Market Value of such Shares on the delivery date. In the absence of such arrangements, the Company
or one of its Affiliates shall have the right to withhold such taxes from [the Participant’s normal
pay or other]3 amounts payable to the Participant [(other than normal pay)]4






 




			
	1	 	The bracketed language is included in awards
to employees in Belgium.
	 
	2	 	The bracketed language is included in awards
to employees in the United Kingdom.
	 
	3	 	The bracketed language is included in all
awards other than those to employees in Portugal.





 









 




to the extent permitted under applicable law. In addition, any statutorily required withholding
obligation may be satisfied, in whole or in part, at the Participant’s election, in the form and
manner prescribed by the Committee, including by delivery of shares of Common Stock (including RSU
Shares).




6. Controlling Provisions.



Except as otherwise expressly provided herein, this Agreement is subject to all of the terms,
conditions and provisions of the Plan, including, without limitation, the amendment provisions
thereof, and to such rules, regulations and interpretations relating to the Plan as may be adopted
by the Committee and as may be in effect from time to time. The Plan is incorporated herein by
reference. Capitalized terms in this Agreement that are not otherwise defined shall have the same
meanings as set forth in the Plan. If and to the extent that this Agreement conflicts or is
inconsistent with the terms, conditions and provisions of the Plan, this Agreement shall control.
This Agreement contains the entire understanding of the parties with respect to the subject matter
hereof and supersedes any prior agreements between the Company and the Participant with respect to
the subject matter hereof.




7. Amendment; Section 409A of the Code.



To the extent applicable, the Board or the Committee may at any time and from time to time amend,
in whole or in part, any or all of the provisions of this Agreement to comply with Section 409A of
the Code or any other applicable law and may also amend, suspend or terminate this Agreement
subject to the terms of the Plan; provided that no such amendment shall impair the Participant’s
rights hereunder without his or her prior written consent. While the Company does not guarantee
any particular tax treatment with respect to the RSUs and the RSU shares, payment of the RSU Shares
is intended either to qualify as a “short-term deferral” under Section 409A of the Code or to
comply with Section 409A. Notwithstanding the foregoing or anything else in this Agreement, if the
Committee considers the Participant to be one of the Company’s “specified employees” under Section
409A of the Code at the time of the Participant’s Termination and such Termination constitutes a
“separation from service” under Section 409A, any distribution that otherwise would be made to the
Participant with respect to the RSUs as a result of such Termination shall not be made until the
date that is six months after such Termination, except to the extent that earlier distribution
would not result in the Participant incurring interest or additional tax under Section 409A of the
Code.




8. Notices.



Any notice or communication given hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, or by United States mail, to the appropriate party at the
address set forth below (or such other address as the party shall from time to time specify):



If to the Company, to:



NYSE Euronext






 




			
	4	 	The bracketed language is included in awards
to employees in Portugal.






 









 








11 Wall Street

New York, New York 10005

Attention: [insert name]



If to the Participant, to the address on file with the Company.




9. No Obligation to Continue Employment.



This Agreement is not an agreement of employment. This Agreement does not guarantee that the
Company or its Affiliates will employ or retain, or continue to employ or retain, the Participant
during the entire, or any portion of the, term of this Agreement, including but not limited to any
period during which any RSU is outstanding, nor does it modify in any respect the Company’s or its
Affiliates’ right to terminate or modify the Participant’s employment or compensation.




10. Dividend Equivalents.




     (a) The Company shall determine whether, if any cash dividends (whether regular or
extraordinary) are paid on shares of Common Stock during any year in which any of the RSUs remain
outstanding, the Participant shall be eligible to receive any amounts with respect to such cash
dividends and, if so, whether such amounts shall be payable in cash (any such amounts, “Cash
Dividend Equivalents”) or shares of Common Stock (any such shares, “Dividend Shares”). Such
determination shall be made not later than December 31 of the year prior to any year for which any
such amounts are payable; provided that, for any such amounts payable for the year in which the
Grant Date occurs, such determination shall be made not later than 30 days following the Grant
Date.



     (b) The amount of any Cash Dividend Equivalent shall equal the amount of the cash dividend
that the Participant would have received on the undistributed RSU Shares and, if applicable, the
undistributed Dividend Shares had such Shares been distributed to the Participant as of the
applicable dividend record date. Any such Cash Dividend Equivalent shall be paid to the
Participant on or within 30 days after the date on which the applicable dividend is paid.



     (c) The aggregate Fair Market Value of any Dividend Shares as of the applicable dividend
record date shall equal the amount of the cash dividend that the Participant would have received on
the undistributed RSU Shares and, if applicable, the undistributed Dividend Shares had such Shares
been distributed to the Participant as of such record date. The terms set forth in Sections 2, 3
and 7 relating to vesting, forfeiture and distribution that apply to the RSUs outstanding as of
such record date shall apply also to such Dividend Shares.



11. Representations.



Each of the parties hereby represents and warrants that (a) such party is fully authorized to enter
into this Agreement and to perform such party’s obligations under it, (b) the execution, delivery
and performance of this Agreement does not violate any applicable law, regulation, order, judgment
or decree or any agreement, plan or corporate governance document or, in the case of the Company,
any agreement among holders of its Common Stock, (c) upon the execution of this





 









 







Agreement by the Company and the Participant, this Agreement shall be the valid and binding
obligation of the Company, enforceable in accordance with its terms except to the extent
enforceability may be limited by applicable law.




12. Issuance of Common Stock.



The Participant agrees that the Company shall not be obligated to deliver any RSU Shares if the
Company reasonably determines that such sale or delivery would violate any applicable law, rule or
regulation of any governmental authority or any applicable rule or regulation of, or agreement of
the Company with, any securities exchange or association upon which the Common Stock is listed or
quoted. In the event of any such restriction (other than one due to insider trading issues), the
Company shall take all such action as may be necessary or appropriate to eliminate such restriction
at the earliest practicable date. All RSU Shares when issued shall be duly authorized and shall be
(a) validly issued, fully paid and non-assessable, (b) registered for sale, and for resale, by the
Participant under federal and state securities laws and shall remain registered so long as the
shares may not be freely sold in the absence of such registration and (c) listed, or otherwise
qualified, for trading in the United States, on each national securities exchange or national
securities market system on which the Common Stock is listed or qualified. Except as expressly
provided herein, the Company shall not otherwise have any right not to deliver the RSU Shares.




13. Miscellaneous.




     (a) This Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective heirs, legal representatives, successors and assigns.



     (b) Provisions contained in any Employment Agreement relating to golden parachute tax,
mitigation and offset, resolution of disputes, governing law and survival of the Employment
Agreement are incorporated mutatis mutandis into this Agreement.



     (c) If any provision of this Agreement shall be declared by any court or arbitrator of
competent jurisdiction to be invalid, illegal or incapable of being enforced in whole or in part,
the remaining conditions and provisions or portions thereof shall nevertheless remain in full force
and effect and enforceable to the extent they are valid, legal and enforceable.



 









 





14. Transfer of Personal Data.



[The Participant authorizes, agrees and unambiguously consents to the transmission by the
Company (or any Affiliate) of any personal data information related to the RSUs, for legitimate
business purposes (including, without limitation, the administration of the Plan) out of the
Participant’s home country and including to countries with less data protection than the data
protection provided by the Participant’s home country. This authorization/consent is freely given
by the Participant.]5



[The Participant consents to the holding and processing of data about him and his dependants
(including sensitive personal data) for the purposes of administering the RSUs granted hereunder
and the disclosure of such data (even outside the European Union) to the Company and/or any
Affiliate and to any potential purchaser thereof and to the advisors of the Company and/or any
Affiliate and to the Committee (or its authorized delegate).]6




15. [Employment Damages Exclusion.



The Participant acknowledges and agrees that participation in the Plan is a matter entirely
separate from any pension right or entitlement that the Participant may have pursuant to the
Participant’s terms and conditions of employment with the Company and/or its Affiliates. The
Participant understands and agrees that if he leaves the employment of the Company and/or its
Affiliates or otherwise ceases to be an Eligible Employee, he shall not be entitled to any
compensation for any loss of any right or benefit or prospective right or benefit under the Plan
which he might otherwise have enjoyed whether such compensation is claimed by way of damages for
wrongful dismissal or other breach of contract or by way of compensation for loss of office or
otherwise howsoever.]7






 




			
	5	 	This provision is included in all awards
other than those to employees in the United Kingdom.
	 
	6	 	This provision is included in awards to
employees in the United Kingdom.
	 
	7	 	This provision is included in awards to
employees in the United Kingdom.




 









 









[Acceptance of this Agreement by the Participant constitutes acceptance of these terms,
effective as of the day and year first set forth above.]8



[IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first set
forth above.




NYSE EURONEXT




Name:

Title:




PARTICIPANT




___________________________]9




[(SIGNATURE REQUIRED)]10






 




			
	8	 	This provision is included only in awards to
employees in the United States.
	 
	9	 	Signatures are included in awards to
employees other than in the United States.
	 
	10	 	The signature of the award recipient is
required in awards to employees in Belgium.