Consulting Agreement



 Exhibit 10.4 
  

					
	 	  	 


 Chicago Mercantile Exchange
	  	 
			
	 Terrence A. Duffy
 Chairman of the
Board
	  	 20 South Wacker Drive
 Chicago, IL
60606-7499
 www.cme.com
	  	 312/930.2000 tel
 312/930.2040 fax
 tduffy@cme.com


  
 October 10, 2005

  
 Mr. John F. Sandner 
 RB&H Financial Services, L.P. 
 30 S. Wacker #1912 
 Chicago, IL 60606 
  
 Dear Mr. Sandner: 
  
 This letter will confirm the terms of your agreement (the “Agreement”) with the undersigned Chicago Mercantile Exchange Holdings Inc.
(“CME”), with respect to your performance of consulting services for CME and its subsidiaries and affiliates (collectively with CME, the “CME Entities”) commencing on the date you sign this Agreement. 
  
 1. Term. The initial term of this Agreement shall commence effective
upon the date you accept this Agreement and shall continue in force during your service on the Board of Directors of CME (the “Term”). This agreement shall terminate upon your death or “permanent disability.” For purposes of this
Agreement, “permanent disability” shall mean any mental or physical disability or illness which results in your being unable to substantially perform your duties for a continuous period of 150 days or for periods aggregating 180 days of
any 365 day period. 
  
 2. Scope of Consulting Services.
During the term of this Agreement, you will render consulting services to CME and CME Entities upon request with respect to the financial services industry and related matters and other matters in which you have expertise. In providing such
services, you shall comply with all applicable laws, statutes, regulations, orders, codes and other acts of any applicable governmental authority and the policies, standards and regulations of CME and the CME Entities. You will personally perform
all of the consulting services required under this Agreement. Any request for consulting services under this Agreement will be made by the Board of Directors or the Chief Executive Officer of CME. The Board of Directors or the Chief Executive
Officer insofar as reasonably practicable, shall consider your convenience in the timing of his requests, and your failure or inability, by reason of temporary illness or other cause beyond your control or because of your absence for reasonable
periods, to respond to such requests during any such temporary period shall not be deemed to constitute a default on your part in the performance of your consulting services under this Agreement. 







 

 
  
 3. Consulting Fee. In
consideration for your consulting services and the non-compete and confidentiality provisions of this Agreement, CME shall pay to you $200,000 per annum during the Term, payable in four equal installments of $50,000 and a pro-rata amount for periods
less than a full three month period. The first such installment shall be paid as soon as practicable following effectiveness of this Agreement, with respect to the first three month period, and all subsequent installments shall be due and payable on
or about the first day of each subsequent three month period during the term of this Agreement. This consulting fee is in lieu of the stipend you currently receive in your capacity as Special Policy Advisor. Subsequent to the effective date of this
Agreement, you shall receive the standard compensation and benefit package awarded to CME non-executive directors, except as specifically provided in paragraph 4, hereof. 
  
 4. Expense Reimbursement /Other Benefits. CME shall reimburse you for, or advance to you, all reasonable and
necessary out-of-pocket travel and other expenses incurred by you at the specific request of a CME Entity and otherwise consistent with CME expense reimbursement policies from time to time in effect in connection with your performance of consulting
services hereunder. 
  
 5. Nature of the Consulting
Relationship. You will perform the consulting services required under this Agreement as an independent contractor to, and not as an agent or employee of, CME or any other CME Entity. Except as and to the extent that CME or another CME Entity, as
the case may be, may otherwise prescribe in writing, you shall not have any authority to negotiate or to conclude any contracts on behalf of, or otherwise bind, CME or any other CME Entity. You shall be solely responsible for and shall pay all
amounts of applicable federal and state income and self employment taxes. You shall not be eligible to participate in any employee benefit, group insurance or compensation plans or programs maintained by any CME Entity, except for those plans or
programs available to other non-executive directors that you may participate in as a director. Neither CME nor any other CME Entity shall provide Social Security, unemployment compensation, disability insurance, workers’ compensation or similar
coverage, or any other statutory employment benefit, to you. 
  
 6. Assisting Competitors. During the term of this Agreement and for a period of one year thereafter, you will not, without the prior written consent of CME (a) render any services whether or not for compensation, to other
individuals, firms, corporations or entities in connection with any matter that involves material interests adverse to any CME Entity, (b) directly or indirectly compete with any CME Entity anywhere in the world or (c) engage in any
business or activity that you reasonably believe to be materially detrimental to the business or interests of any CME Entity. 
  
 7. Confidential Information. In connection with your service to the CME Entities and their predecessors, and pursuant to this Agreement, you have
acquired or may acquire confidential information with respect to the business, plans, strategies, finances, technology, markets, operations, customers, 
  

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 members, employees, suppliers and
vendors and other matters of or related to the CME Entities. In addition to the fiduciary responsibility of a director, at least two CME policies on confidentiality govern disclosure of information secured by reason of service on the Board of
Directors. CME’s Corporate Governance Principles respecting Confidentiality of Information provide: “In order to facilitate open discussion, confidentiality of information and deliberations is an imperative. Each Director has an
affirmative duty to safeguard the confidentiality of information provided to the Board.” The Board Of Directors Code Of Ethics provides: “Confidential Information: Board members may often receive or have access to confidential,
sensitive and nonpublic information about CME and others. Board members should presume that any information they receive about CME or about CME’s customers, members or others through their work as a Board member is confidential and, therefore,
should not be disclosed or made public, except when disclosure is authorized or legally required. Board members have an obligation to safeguard confidential information, whether generated internally or acquired from others, and to use it only in the
performance of their responsibilities as a Board member.” (All of the foregoing categories of information are, collectively, the “Confidential Information”) Unless disclosure is required by law, you shall not, without the prior
written consent of CME, at any time, whether during or after the term of this Agreement, communicate or divulge any Confidential Information to anyone other than a CME Entity or those other persons or entities designated by CME. All records, files,
documents, notes, data and the like relating to the business or activities of any CME Entity which you shall prepare, develop, use, compile or receive shall be and remain the sole property of CME, or such other CME Entity as the case may be, and
shall be returned upon CME’s request. “Confidential Information” shall exclude information (a) readily available in the public domain other than as a result of your act or omission or (b) obtained from third parties
rightfully in possession of such information and having no direct or indirect confidentiality obligation to any CME Entity. 
  
 8. Indemnification. CME agrees to indemnify you if you are a party or are threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that you are providing consulting services under this Agreement. The indemnification shall be from and against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by you or on your behalf in connection with such action, suit or proceeding and any appeal therefrom, but shall only be provided if you acted in
good faith and in a manner you reasonably believed to be in or not opposed to the best interests of CME, and, with respect to any criminal action, suit or proceeding, had no reasonable cause to believe your conduct was unlawful. 
  
 9. Non-Waiver. The failure by either party to exercise any of its or
his rights in the event of a breach of this Agreement by the other party shall not be construed as a waiver of such breach or any subsequent breach, or prevent either party from later enforcing strict compliance with this Agreement as to such breach
or any subsequent breach. 
  

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 10. Severability. If any
provision of this Agreement is held by a court of competent jurisdiction to be void or unenforceable for any reason, such provision shall be modified or deleted in such manner so as to make this Agreement, as modified, legal and enforceable, and the
remaining provisions hereof shall continue in full force and effect. 
  
 11. Notices. All notices and other required communications under this Agreement (“Notices”) shall be in writing, and shall be sent to a party at the address set forth below such party’s signature block below. A party
may change its address by sending Notice to the other party of the new address. Notices shall be given: (a) by personal delivery to the other party; (b) by facsimile, with a confirmation sent by registered or certified mail, return receipt
requested; (c) by registered or certified mail, return receipt requested; or (d) by express courier (e.g. DHL, Federal Express, etc.). Notices shall be effective and shall be deemed delivered: (i) if by personal delivery, on the date
of the personal delivery; (ii) if by facsimile, on the date stated in the electronic confirmation, delivered during normal business hours (8:00 a.m. to 5:00 p.m. at recipient’s location), and, if not delivered during normal business hours,
on the next business day following delivery; (iii) if solely by mail, on the date of receipt as stated on the return receipt; or (iv) if by express courier, on the date signed for or rejected as reflected in the courier’s delivery
log. 
  
 12. Miscellaneous. This Agreement is personal to
you, and you shall not assign this Agreement without CME’s prior written consent. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. This Agreement contains the entire understanding between
CME and yourself with respect to the subject matter hereof and supercedes and voids all prior negotiations, discussions, and agreements, whether written or oral. This Agreement may not be amended, modified or extended other than by a written
agreement executed by the parties hereto. 
  
 *    *    * 
  

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 Please confirm that the foregoing
Agreement correctly sets forth the agreement between CME and yourself by signing and returning to CME one of the enclosed copies of this letter. 
  

			
	 	 	Very truly yours,
		
	 	 	CHICAGO MERCANTILE EXCHANGE HOLDINGS INC.
		
	 	 	 /s/ Terrence A. Duffy


	 	 	Terrence A. Duffy
	 	 	Chairman Of The Board
	 Agreed and Accepted as of
 October 10,
2005
	 	Address for Notice Purposes:
		
	 /s/ John F. Sandner

 John F. Sandner
  
  
 Address for Notice Purposes:
  
 RB&H Financial Services, L.P.
 30 S. Wacker #1912
 Chicago, IL 60606
	 	 Chicago Mercantile Exchange Holdings Inc.
 20
South Wacker Drive
 Chicago, IL 60606
 Attention: General
Counsel

	 
	 

  

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