EXHIBIT 10.16


 


AMENDED
AND RESTATED

EMPLOYMENT AGREEMENT


 


THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (“Agreement”), made and entered into effective as
of December 9, 2008 (the “Effective Date”), by and between the
CHICAGO BOARD OPTIONS EXCHANGE, INC. (“Employer”) and WILLIAM J. BRODSKY
(“Employee”), is an amendment and restatement of the employment
agreement previously entered into between the Employer and Employee entered
into effective as of January 1, 2007 (the “Prior Agreement”).


 


WITNESSETH:


 


WHEREAS, Employer and
Employee desire to amend, revise and restate the Prior Agreement;


 


WHEREAS, Employer
desires that Employee continue to provide services for the benefit of the
Employer and its affiliates and Employee desires to continue such employment with
the Employer;


 


WHEREAS, Employer and
Employee acknowledge that Employee will continue to be a member of the senior
management team of Employer and, as such, will continue to participate in
implementing the Employer’s business plan;


 


WHEREAS, in the course
of employment with the Employer, Employee has had and will continue to have
access to certain confidential information that relates to or will relate to
the business of the Employer and its affiliates; and


 


WHEREAS, Employer
desires that any such information not be disclosed to other parties or
otherwise used for unauthorized purposes.


 


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 agree as follows:


 


1.             Employment.


 


(a)           Employer shall continue to employ
Employee on the terms hereinafter set forth. 
Except as set forth in Section 2 below, Employee shall continue to
be employed as Chairman and Chief Executive Officer for the term of this
Agreement.  Employee shall perform such
duties as may be prescribed for such offices in the Constitution and Rules of
Employer and those, consistent with the offices of Chairman and Chief Executive
Officer, that may be assigned to him from time to time by the Board of
Directors of Employer (“Board”).


 


(b)           Employee agrees to continue to devote
his full business time and efforts to the affairs of Employer and to the
performance of his duties as its Chairman and/or Chief 


 


1

















 


Executive Officer. 
In doing so, he agrees to conduct himself at all times in a manner
consistent with the reputation of Employer.


 


(c)           Employee agrees not to accept any
membership on the board of directors of any private or public corporation
(other than a non-business, not-for-profit, corporation) without the prior
approval of the Board.  Employer agrees
to grant such approval if, in the discretion of the Board, such membership will
present no conflict of interest or interference with Employee’s duties as
Chairman and/or Chief Executive Officer of Employer, or any other duties
assigned to him pursuant to Section 2. 
Employee will be entitled to retain all fees received in connection with
membership on any such board of directors.


 


2.             Term.  The term of this Agreement shall commence on
the Effective Date and shall, unless earlier terminated in accordance with Section 6
hereof or extended as hereinafter provided, expire on December 31, 2009 at
5 P.M. (C.S.T.).  The term of this
Agreement shall be extended, without further action by Employer or Employee, on
the date (the “Extension Effective  Date”) that is one (1) year
before December 31, 2009 and on the date (also an “Extension Effective
Date”) that is one (1) year before each subsequent December 31,
for successive periods of one (1) year each, unless Employer provides
Employee, or Employee provides Employer, with written notice to the contrary at
least one (1) year prior to the Extension Effective Date in question.


 


During the last calendar
year of the term of this Agreement, Employer may employ a successor to
Employee.  In anticipation of or because
of such event, during such last calendar year, Employee’s title and duties may
be changed by the Board, provided such changed duties shall not be of the type
described in Section 6(c)(iii) below. 
Any such change in the title and duties of Employee may be made whether
or not a successor to Employee is employed during such last calendar year, and
shall not in any way affect any other provision of this Agreement.  Such change shall not constitute Good Reason
under paragraph (c) of Section 6 or Section 9.


 


3.             Compensation.  Employer shall pay to Employee for all
services to be performed by Employee during the term of this Agreement:


 


(a)           A Base Salary at the rate of
$1,400,000, per annum, payable in substantially equal regular installments in
accordance with Employer’s practices for other executives, as such practices
may be determined from time to time.


 


(b)           In addition to the aforementioned
annual Base Salary, Employee may, for each calendar year of the term, be
entitled to an annual Bonus to reflect the value of his services during the
applicable calendar year.  Each such annual
Bonus shall be a cash amount, as determined by the Board in its sole
discretion, based upon the recommendation of the Compensation Committee of the
Board (“Committee”).  The Bonus
for each calendar year shall be payable to Employee as soon as practicable
after the end of such calendar year, and in any event no later than March 15
of the year immediately following the calendar year for which it was earned.


 


2

















 


(c)           All payments of Base Salary and Bonus
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.


 


4.             Additional Benefits.


 


(a)           Supplemental Retirement Benefit.  Employee shall be entitled to a Supplemental
Retirement Benefit for each calendar year commencing or ending during the term
of this Agreement, with the Supplemental Retirement Benefit for each such
calendar year being equal to:


 


(i)            ten percent (10%) of Employee’s
annual Base Salary for the applicable calendar year, plus


 


(ii)           a Gross-Up Payment, as such term is
defined in paragraph (1) of this Section 4, in respect of such
Supplemental Retirement Benefit.


 


The Supplemental Retirement Benefit for each calendar
year shall be paid to Employee as soon as practicable after the end of such
calendar year, and in any event no later than March 15 of the year
immediately following such calendar year.


 


(b)           Benefit Plans.  Employee shall be entitled to participate in,
and receive benefits under, (i) any qualified or supplemental retirement
plan, program or arrangement currently made available by Employer for its
executives, and (ii) any such additional or substitute plan, program or
arrangement that Employer may make available in the future and during the term
of this Agreement for its executives (“Benefit Plans”), subject to and
on a basis consistent with the terms, conditions and overall administration of
each such Benefit Plan.  If Employee’s
employment with Employer, whether before, at, or after the expiration of the
term hereof, terminates prior to Employee’s full vesting of benefits under any
Benefit Plan, and provided Employee’s employment is not terminated for “Cause”
as defined in Section 6 below, Employee’s rights thereunder shall not be
subject to any forfeiture, but shall be treated as if fully vested under the
Benefit Plan, and Employee shall receive fully vested benefits from either the
Benefit Plan, Employer or both, based upon the Benefit Plan’s then current
benefit formula and limited to Employee’s actual service with Employer and his
average earnings at the date of termination of employment.  If Employee shall be terminated for Cause,
whether before, at, or after the expiration of the term hereof, prior to
Employee’s full vesting of benefits under any Benefit Plan, Employee shall be
entitled only to his vested benefit under such Benefit Plan based upon the
terms thereof Employer shall make a contribution on behalf of Employee under
the Executive Retirement Plan of Employer, or any successor or substitute plan,
pursuant to the terms thereof, for any calendar year ending during the term
hereof, in an amount, if any, as designated by the Board in its sole
discretion; provided, however, that such contribution shall be consistent with
the contributions made for other senior executives of Employer.


 


3

















 


Contributions made with respect to Employee pursuant
to the Supplemental Retirement Plan of Employer, the Executive Retirement Plan
of Employer, or any other nonqualified Benefit Plan at any time during the term
hereof maintained by Employer (other than the Supplemental Retirement Benefit
described in paragraph (a) of this section), shall continue to be
contributed by Employer to a trust agreement established by Employer.  Designated officers of Employer are the
co-trustees of such trust agreement and have investment authority with respect
to trust assets; provided that the trustees shall give consideration to
investment guidelines made available by Employee from time to time.  Trust assets attributable to contributions
made with respect to Employee and earnings thereon are subject to creditors of
Employer, but are otherwise available only to pay benefits to Employee and his
beneficiaries pursuant to the terms of the applicable Benefit Plans of Employer
and the terms of this Agreement. 
Contributions to the trust agreement for each calendar year shall be
made as soon as practicable after the end of such calendar year, and in any
event within 90 days after the end of such calendar year.


 


(c)           Memberships and Business Expenses.  Employer will pay or promptly reimburse
Employee for the following:


 


(i)            all initiation fees, annual dues and
membership expenses in one country club selected and joined by Employee in
which membership is useful for or necessary to the performance of Employee’s
duties hereunder, and all reasonable expenses incurred in furtherance of, or in
connection with the transaction of, the business of Employer hereunder at such
country club;


 


(ii)           all reasonable initiation fees,
annual dues and membership expenses in such civic, professional and lunch clubs
selected by Employee in which membership is useful or necessary to the
performance of Employee’s duties hereunder, and all reasonable expenses
incurred in furtherance of, or in connection with the transaction of, the
business of Employer hereunder at such civic, professional and lunch clubs;


 


(iii)          all reasonable expenses related to the
Spouse of Employee when she accompanies Employee on trips necessary or useful
to the performance of Employee’s duties hereunder and where it is appropriate
for such Spouse to accompany Employee to further the performance of his duties;
and


 


(iv)          all other reasonable business
expenses, including automobile expenses, incurred by Employee in the
performance of his duties hereunder.


 


Employer shall pay a
Gross-Up Payment, as such term is defined in paragraph (1) of this Section 4,
in respect of any payment or reimbursement of expenses described in this
paragraph (c) that is includible in Employee’s income for income tax
purposes.  For purposes of this
Agreement, the term “Spouse” shall mean Employee’s spouse as of the
Effective Date.


 


(d)           Professional Services.  Employee shall be entitled to reimbursement
from Employer for his expenses for professional services, including legal,
accounting and 


 


4

















 


investment advice, relating to his continued
employment with Employer and the performance of duties and reporting
obligations related to his employment with Employer, and management of personal
finances, income tax advice, and estate planning advice.  The total reimbursable amount hereunder for
each calendar year commencing or ending during the term of this Agreement shall
not exceed the aggregate of (i) $12,500, plus (ii) an amount equal to
the excess of $12,500 over the amount reimbursed hereunder for any preceding
calendar year that is not reimbursed in any other preceding calendar year.


 


In addition to any reimbursable amount under the
preceding paragraph, Employee shall also be entitled to reimbursement from
Employer for his expenses for legal services in connection with the negotiation
of the terms of this Agreement and review of related documents, in an amount
not to exceed $10,000.


 


(e)           Administrative Support.  If Employee is employed by Employer on December 31
of the last calendar year of the term of this Agreement, then for a period not
to exceed twelve (12) months thereafter, Employer shall at its expense provide
Employee with (i) an office on the premises of Employer at its principal
place of business and (ii) reasonable administrative support staff, which
office and support staff shall be consistent with Employee’s status during the
term of this Agreement.


 


(f)            Accounting For Reimbursements.  All of the aforementioned amounts subject to
reimbursement by Employer to Employee pursuant to paragraphs (c) and (d) of
this Section 4 shall be subject to an accounting by Employee and approval
by Employer.


 


(g)           Parking.  Employer shall provide, without charge, a
reserved automobile parking space for the exclusive use of Employee on the
premises of Employer.


 


(h)           Vacations and Holidays.  Employee shall be entitled to five (5) weeks
paid vacation during each calendar year commencing or ending during the term of
this Agreement.  Employee shall also be
entitled to all paid holidays given by Employer to its other executives.


 


(i)            Insurance Benefits.  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 executives, and (ii) any such additional or substitute
plan that Employer may make available in the future and during the term of this
Agreement for its executives (“Insurance Plans”), subject to and on a
basis consistent with the terms, conditions, and overall administration of each
such Insurance Plan.  At all times during
the term of this Agreement, Employer shall maintain in force term life
insurance coverage on Employee’s life in a face amount that, when aggregated
with the face amount of coverage available under any life insurance plan or
arrangement otherwise maintained by Employer, shall equal $1.8 million dollars.


 


(j)            Retiree Medical Coverage.  Employer shall maintain retiree medical
coverage for Employee and his Spouse for a period commencing on the date of his



 


5

















 


termination of employment with Employer and ending on
the date of death of the survivor of Employee and his Spouse on the terms and
conditions set forth in this subparagraph (j). 
Such retiree medical coverage shall provide medical coverage for Employee
and his Spouse equivalent to that available to active executives of Employer
and their spouses under the health plan of Employer from time to time in
effect.  The amount of such retiree
medical coverage for Employee and his Spouse shall be reduced by the amount of
any medical coverage available to Employee and/or his Spouse from time to time
from any subsequent employer and from Medicare, whether or not Employee or his
Spouse are actually enrolled in such other coverage.  Employee or his Spouse shall pay the cost of
such retiree medical coverage on an after-tax basis and shall be reimbursed by
Employer, within 60 days after the end of each calendar year, for the cost of
such coverage.  Employee or his Spouse
shall also receive, within 60 days after the end of each calendar year, a
Gross-Up Payment, as such term is defined in paragraph (l) of this Section 4,
in respect of such reimbursement.


 


(k)           Other Fringe Benefits.  Employee shall be entitled to participate in,
and take advantage of, any other fringe benefits offered from time to time during
the term hereof by Employer to its executives.


 


(l)            Gross-Up Payments.  For purposes of this Agreement, a “Gross-Up
Payment” shall mean an additional cash amount to be paid to Employee or his
Spouse in connection with a payment or reimbursement to Employee or his Spouse
under paragraphs (a), (c) and (j) of this Section 4, such that
the net amount retained by Employee or his Spouse on such Gross-Up Payment,
after reduction for any federal, state and local income or employment tax (at
the highest applicable marginal rate of taxation for the applicable calendar
years) on the Gross-Up Payment, shall be equal to the federal, state and local
income or employment taxes owed on the payment or reimbursement to Employee or
his Spouse under paragraphs (a), (c) and (j) of this Section 4.  All Gross-Up Payments will be made by the end
of Employee’s taxable year next following the Employee’s taxable year in which
Employee remits the related taxes, in accordance with Section 409A of the
Code and Treas. Reg. §1.409A-3(i)(1)(v) (or any similar or successor
provision).


 


(m)          Timing of Reimbursements.  Except as otherwise provided in this Section 4,
all reimbursements of expenses shall be made to Employee no later than the end
of the year following the year in which the expense was incurred.


 


5.             Conversion of Employer to a
For-Profit Corporation.  In the event
that Employer becomes a For-Profit Corporation during the term of this
Agreement, Employer agrees to negotiate with Employee in good faith with
respect to:  (1) the grant to
Employee of long-term incentives related to the equity of Employer as a
For-Profit Corporation consistent with such equity grants to comparable
executives made by corporations engaged in similar businesses to that of
Employer; and (2) the adjustment of the terms of this Agreement as is
appropriate as a result of Employer’s status as a For-Profit Corporation;
provided that the total compensation and other benefits available to Employee
under this Agreement are not reduced in the aggregate or adversely affected as
a result of such adjustment.  For
purposes of this Section 5, Employer shall be deemed to be a For-Profit
Corporation if it converts from a not-for-profit member-owned 


 


6

















 


corporation to a for-profit
shareholder-owned corporation.  Further,
upon Employer’s adoption of a stock option or similar equity incentive plan,
Employer shall grant Employee options to purchase shares of its common stock,
or other equity awards, in amounts and subject to such terms as determined by
the Board in its sole discretion; provided, however, that the amount of
options, or other equity awards, and the terms and conditions of such options,
or other equity awards, shall be substantially similar to (and not less
favorable to Employee than under) the proposed equity plan that was presented
to the Board at its September 28, 2006 meeting.  Options granted to Employee under such a plan
shall provide, among other things, that options, or other equity awards, shall
vest upon Employee’s retirement after attaining age sixty-five (65), or upon
the occurrence of a Change in Control (as defined in Section 9 below), and
all vested options may thereafter be exercised by Employee for the remainder of
their term.  The provisions of the foregoing
sentence shall survive the expiration of the term of this Agreement.


 


6.             Termination.  For purposes of this Agreement, Employee’s
employment with Employer shall be deemed to be terminated when Employee has a “separation
from service” within the meaning of Section 409A of the Code, and
references to termination of employment shall be deemed to refer to a
separation from service.


 


(a)           Termination for Cause.  The Board, by vote of a majority of its
members at a meeting at which Employee is present and given an opportunity to
present his views, may terminate the employment of Employee with Employer at
any time for “Cause.”  For purposes of
this Agreement, “Cause” shall be deemed to exist if, and only if:


 


(i)            Employee shall engage, during the
performance of his duties hereunder, in acts or omissions constituting
dishonesty, intentional breach of fiduciary obligation or intentional
wrongdoing or malfeasance;


 


(ii)           Employee shall intentionally disobey
or disregard a lawful and proper direction of the Board; or


 


(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 30 days following receipt by Employee of
written notice from Employer specifying the nature of the breach and demanding
the cure thereof.  For purposes of this
clause (iii), a material breach of this Agreement which involves inattention by
Employee to his duties under this Agreement shall be deemed a breach capable of
cure.


 


The following shall not constitute
Cause for the termination of the employment of Employee or the modification or
diminution of any of his authority hereunder:


 


(i)            any personal or policy disagreement
between Employee and Employer or any member of Employer or the Board; or


 


(ii)           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 he reasonably believed to be in,
and not opposed to, the best 


 


7

















 


interest of Employer, and he had no reasonable cause
to believe his conduct was unlawful.


 


Notwithstanding anything
herein to the contrary, if Employer shall terminate the employment of Employee
hereunder for Cause, Employer shall give at least 30 days prior written notice
to Employee specifying in detail the reason or reasons for Employee’s
termination.  If the employment of
Employee with Employer is terminated by Employer for Cause, Employer shall pay
Employee his accrued but unpaid Base Salary (at the rate most recently
determined) through the date of termination and a Supplemental Retirement
Benefit calculated on Employee’s Base Salary earned through the date of
termination, and, except as otherwise provided in this Agreement or in any Benefit
Plan, Insurance Plan, program or arrangement of Employer, Employer shall have
no further obligation to Employee under this Agreement.  Such termination shall have no effect upon
Employee’s rights under the Benefit Plans, the Insurance Plans and the retiree
medical coverage described in paragraph (j) of Section 4 hereof.


 


(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 of this Agreement, as of a date at least 15 days after the date
a written notice of such termination is delivered by Employer to Employee.  In such event, Employer shall, subject to the
terms of Section 17 of this Agreement, within 30 days following the date
of such termination, pay to Employee:


 


(i)            his Base Salary (based on the annual
rate in effect on the date of termination) through the date of termination;


 


(ii)           a pro-rated Bonus equal to the
Employee’s annual target Bonus for the calendar year in which Employee’s employment
terminates 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 365 (the “Pro-Rated
Bonus”);


 


(iii)          a Supplemental Retirement Benefit
calculated on Employee’s Base Salary earned through the date of termination;
and


 


(iv)          a lump sum cash severance payment in
an amount equal to the aggregate of:


 


(A)          the greater of (1) one times
Employee’s annual rate of Base Salary in effect on the date of termination; or (2) the
aggregate amount of Base Salary (based on the annual rate in effect on the date
of termination), payable to Employee during the balance of the term of this
Agreement following Employee’s date of termination;


 


(B)           the greater of (1) one times the
Employee’s annual target Bonus for the calendar year in which his employment
terminates, or (2) the annual target Bonus for the calendar year in which
his employment terminates, multiplied by the number of years remaining in the
term of this 


 


8

















 


Agreement. 
Notwithstanding the foregoing, to the extent the annual Bonus is
intended to satisfy the requirements for “performance-based compensation” (as
such term is defined in Section 162(m) of the Code), the “annual
target Bonus” described in the preceding sentence will be the bonus that would
have been paid to Employee for the calendar year in which such termination
occurs, based on the performance level actually attained;


 


(C)           a Supplemental Retirement Benefit
equal to ten percent (10%) of the aggregate amount payable under clause (A) above,
plus a Gross-Up Payment, as such term is defined in paragraph (l) of Section 4,
in respect of such Supplemental Retirement Benefit payable pursuant to this
clause (C); and


 


(D)          the aggregate amount of all Employer
contributions that Employee or his account would have received for a period
equal to the greater of one year or the remaining term of this Agreement under
the following employee benefit plans: (1) Chicago Board Options Exchange
SMART Plan; (2) Chicago Board Options Exchange Supplemental Executive
Retirement Plan; and (3) Chicago Board Options Exchange Executive
Retirement Plan, or any successor plan.


 


In the event Employee is
terminated without Cause during the term of this Agreement, except as otherwise
provided in this Agreement or in any Benefit Plan, Insurance Plan, program or
arrangement of Employer, Employer shall have no further obligation to Employee under
this Agreement.  Such termination shall
have no effect upon Employee’s rights under the Benefit Plans, the Insurance
Plans and the retiree medical coverage described in paragraph (j) of Section 4
hereof.


 


(c)           Termination for Good Reason.  Employee may terminate his employment at any
time during the term of this Agreement for “Good Reason” as of a date at least
30 days after the date a written notice of such termination is delivered by
Employee to Employer, unless the condition constituting Good Reason is fully
corrected within 30 days after the Employee gives the Company written notice
thereof.  For purposes of this Agreement,
“Good Reason” shall be deemed to exist if, and only if, without Employee’s
express written consent, Employer or a successor employer:


 


(i)            shall change Employee’s position
with Employer or a successor employer from the position of Chairman and Chief
Executive Officer, except as provided in Section 2;


 


(ii)           shall assign to Employee duties of an
executive nature that are reduced from Employee’s duties as Chairman and Chief
Executive Officer, except as provided in Section 2;


 


(iii)          shall assign to Employee duties of a
nonexecutive nature or for which Employee is not reasonably equipped by his
skills or experience;


 


9

















 


(iv)          shall reduce the Base Salary or the
percentage of Supplemental Retirement Benefit of Employee, or materially reduce
his fringe benefits and perquisites;


 


(v)           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; or


 


(vi)          shall terminate, reduce or limit
Employee’s bonus opportunity under any bonus or incentive arrangement, or his
participation in any Benefit Plan or Insurance Plan relative to the bonus
opportunity or level of participation of other senior executives of similar
rank, and only to such an extent as to materially reduce the aggregate value of
Employee’s incentive compensation and benefits below their aggregate value as
of the date hereof.


 


A termination of Employee’s
employment for Good Reason shall be effectuated by giving Employer written
notice of the termination within sixty (60) days of the event constituting Good
Reason, setting forth in reasonable detail the specific conduct of Employer
constituting Good Reason. 
Notwithstanding anything herein to the contrary, if Employee shall
terminate his employment for Good Reason, Employer shall pay to Employee the
same amounts as are applicable with respect to termination by Employer without
Cause under paragraph (b) of this Section 6, subject to the same
terms and conditions set forth under Section 6(b).


 


(d)           Voluntary Termination without Good
Reason.  Employee may voluntarily
terminate his employment without Good Reason at any time during the term of
this Agreement as of a date at least 30 days after the date a written notice of
such termination is delivered by Employee to Employer.  If the employment of Employee is voluntarily
terminated by Employee without Good Reason, Employer shall pay to Employee the
same amounts as are applicable with respect to termination by Employer for
Cause under paragraph (a) of this Section 6.


 


7.             Death.  Except as otherwise provided in Section 8
below, if Employee dies during the term of this Agreement, or thereafter but
prior to receipt of any amounts to which Employee is entitled, Employer agrees:


 


(a)           to pay Employee the same amounts as
are applicable with respect to termination by Employer without Cause under
paragraph (b) of Section 6, subject to the same terms and conditions
set forth under Section 6(b); and


 


(b)           to provide retiree medical coverage
to the surviving Spouse of Employee, if any, pursuant to the provisions of paragraph
(j) of Section 4 above.


 


8.             Disability.


 


(a)           If Employee is “Permanently Disabled”
for a continuous period of six (6) months, Employer may terminate Employee’s
employment under this Agreement upon written notice to Employee.  In such event:


 


10

















 


(i)            Employee shall be paid the same
amounts as are applicable with respect to termination by Employer without Cause
under paragraph (b) of Section 6, subject to the same terms and
conditions set forth under Section 6(b); and


 


(ii)           Employee shall receive a monthly
disability payment in the amount of $50,000, commencing with the month
following the month through which payments are made pursuant to clause (i) next
above and ending with the first to occur of (1) the month in which
Employee attains age 65, (2) the month in which Employee is no longer
Permanently Disabled, and (3) the month in which Employee dies.  Payments pursuant to this clause (ii) shall
be made by Employer and/or pursuant to a long-term disability policy purchased
by Employer from an insurance company it selects with respect to Employee.  Such payments shall be reduced by any
payments made to Employee pursuant to any long-term disability insurance policy
or plan maintained by Employer for its executives.


 


(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 executives
then in effect, or if no such policy or plan is then in effect, shall mean a
condition of bodily injury or disease or mental disorder that prevents Employee
from performing the principal duties of his employment hereunder, as determined
by an independent physician selected with the approval of both Employer and Employee.


 


9.             Change in Control.


 


(a)           If during the eighteen (18) month
period following a Change in Control that occurs during the term of this
Agreement (1) Employee is terminated by Employer or a successor employer
without Cause, or (2) Employee terminates his employment with Employer or
a successor employer for Good Reason, Employee shall receive, within 30 days
following the date of such termination and in lieu of and in complete
satisfaction of any other payments described under Sections 6(b) or (c) of
this Agreement and subject to Section 17 of this Agreement:


 


(i)            his accrued but unpaid Base Salary
(based on the annual rate in effect on the date of termination) through the
date of termination;


 


(ii)           the Pro-Rated Bonus;


 


(iii)          a Supplemental Retirement Benefit
calculated on Employee’s Base Salary earned through the date of termination;
and


 


(iv)          a lump sum cash severance payment in
an amount equal to the aggregate of:


 


(A)          two (2) times Employee’s annual
rate of Base Salary in effect on the date of termination and two (2) times
the Employee’s annual target Bonus for the calendar year in which Employee’s
employment terminates;


 


11














 


(B)           a Supplemental Retirement Benefit
equal to ten percent (10%) of the Base Salary payable under clause (A) above,
plus a Gross-Up Payment, as such term is defined in paragraph (l) of Section 4,
in respect of such Supplemental Retirement Benefit payable pursuant to this
clause (C); and


 


(C)           the aggregate amount of all Employer
contributions that Employee or his account would have received for a period
equal to two (2) years under the following employee benefit plans: (1) Chicago
Board Options Exchange SMART Plan; (2) Chicago Board Options Exchange
Supplemental Executive Retirement Plan; and (3) Chicago Board Options
Exchange Executive Retirement Plan, or any successor plan.


 


For purposes of this
Agreement, a “Change in Control” of Employer shall be deemed to occur on
the effective time of (1) a merger or consolidation of Employer with one
or more other entities or corporations as a result of which holders of
memberships, seats or outstanding capital stock of Employer entitled to vote
for the election of directors (“Voting Stock”) of Employer immediately
prior to such merger hold less than 50% of the Voting Stock of the surviving or
resulting corporation or entity, or (2) a transfer of substantially all of
the property of Employer other than to a corporation or an entity of which
Employer owns at least 50% of the Voting Stock. 
Payments pursuant to this Section 9 shall be in lieu of any amounts
otherwise payable under Section 6.


 


(b)           If there is a Change in Control of
Employer at anytime while Employee is employed by Employer, or if a definitive
agreement contemplating a Change in Control is executed prior to termination of
Employee’s employment (other than a termination for Cause) and the Change in
Control contemplated by such agreement is consummated, Employee shall be
entitled to a bonus payment in an amount as determined by the Board, which
shall not be less than the value of the options described in Section 5
above based upon the Towers Perrin report delivered to the Board in September 2006
(the “Sale Bonus”), provided that such Sale Bonus shall be reduced (but
not below zero) by the value of options that vest upon the occurrence of a
Change in Control.  The foregoing
notwithstanding, the Sale Bonus shall only be payable so long as Employer has
not consummated an Initial Public Offering prior to the date of the applicable
Change in Control.  An “Initial Public
Offering” shall be deemed to occur upon the first sale of common stock by
Employer to underwriters for the account of Employer pursuant to a registration
statement under the Securities Act of 1933, as amended, filed with and declared
effective by the Securities and Exchange Commission, with minimum net proceeds
of Fifty Million Dollars ($50,000,000). 
Subject to the terms of Section 17, the Sale Bonus shall be payable
in full within thirty days following the Change in Control.


 


(c)           In the event that a Change in Control
shall occur, and a final determination is made by legislation, regulation,
ruling directed to Employee or Employer, by court decision, or by independent
tax counsel described in paragraph (d) next below, that the aggregate
amount of any payment 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



 


12

















 


Payments”) will be subject to the excise tax provisions of Section 4999
of the Code, or any successor section thereof, Employee shall be entitled to
receive from Employer, in addition to any other amounts payable hereunder, a
lump sum payment (the “Excise Tax Gross-Up Payment”) sufficient to cover
the full cost of such excise taxes and Employee’s federal, state and local
income and employment taxes on the Excise Tax Gross-Up Payment, so that the net
amount retained by Employee, after the payment of all such excise taxes on the
Total Payments, and all federal, state and local income and employment taxes
and excise taxes on the Excise Tax Gross-Up Payment (at the highest applicable
marginal rate of taxation for the applicable calendar years), shall be equal to
the Total Payments.  Except as provided
in paragraphs (a), (c), (j) and (l) of Section 4, the Total
Payments shall be subject to any federal, state and local income and employment
taxes thereon.  The Excise Tax Gross-Up
Payment shall be made at the same time as the payments described in clauses (1) and
(2) of this paragraph (c), provided that in no event will the Excise Tax
Gross-Up Payment be made later than the end of Employee’s taxable year next
following the Employee’s taxable year in which Employee remits the related
taxes, in accordance with Section 409A of the Code and Treas. Reg.
§1.409A-3(i)(1)(v) (or any similar or successor provision).


 


(d)           Employer and Employee shall mutually
and reasonably determine the amount of the Excise Tax Gross-Up Payment to be
made to Employee pursuant to the preceding paragraph (c).  Prior to the making of any such Excise Tax Gross-Up
Payment, either party may request a determination as to the amount of such
Excise Tax Gross-Up Payment.  If such a
determination is requested, it shall be made promptly, at Employer’s expense,
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 such counsel may reasonably
request, and such counsel may engage accountants or other experts at Employer’s
expense to the extent that they deem necessary or advisable to enable them 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.  It is hereby agreed that
neither Employer nor Employee shall engage any such firm as counsel for any
purpose, other than to make the determination provided for herein, for three
years following such firm’s announcement of its determination.


 


(e)           In the event the Internal Revenue
Service subsequently adjusts the excise tax computation made pursuant to
paragraphs (c) and (d) of this Section 9, Employer shall pay to
Employee, or Employee shall pay to Employer, as the case may be, the full
amount necessary to make either Employee or Employer whole had the excise tax
initially been computed as subsequently adjusted, including the amount of any
underpaid or overpaid excise tax, and any related interest and/or penalties due
to the Internal Revenue Service. 
Notwithstanding the foregoing, in no event will the adjustment payment
amount described in the preceding sentence be made later than the end of
Employee’s taxable year next following the Employee’s taxable year in which the
Internal Revenue Service makes such adjustment, in accordance with Section 409A
of the Code and Treas. Reg. §1.409A-3(i)(1)(v) (or any similar or
successor provision).


 


13

















 


10.           Restrictive Covenant.  During the term of his employment, and, if
Employee’s employment is terminated pursuant to Sections 6(a), 6(b), 6(c),
6(d), 8 or 9, for a period of two years following the termination of his
employment (except for non-renewal of the Agreement), Employee shall not:


 


(a)           singly, jointly, or in any other
capacity, 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, any securities or
futures exchange, alternative trading system or electronic communications
network (including any derivatives market) providing for the trading of securities
or futures derivatives, located in the United States or any other country, or
any affiliate thereof, or any direct competitor of Employer, without the
express written approval of the Board of Employer.  Employer shall have the sole and exclusive authority
to determine whether an entity is a direct competitor of Employer for purposes
of this Section 10;


 


(b)           provide any service or assistance
which (i) is of the general type of service or assistance provided by
Employee to Employer, (ii) relates to any technology, account, product,
project or piece of work, with which Employee was involved during his
employment with Employer, and (iii) contributes to causing an entity to
come within the definition described in paragraph (a) above;


 


(c)           interfere with the relationship of
Employer and any of its employees, agents or representatives; or


 


(d)           directly or indirectly divert or
attempt to divert from Employer any business in which Employer has been
actively engaged during the term hereof, nor interfere with the relationships
of Employer with its sources of business.


 


11.           Confidentiality.  Employee acknowledges that Employer may
disclose secret or confidential information to Employee during the term of this
Agreement to enable him to perform his duties hereunder.  Employee agrees that, subject to the
following sentence, he shall not during the term of this Agreement (except in
connection with the proper performance of his duties hereunder) and thereafter,
without the prior written consent of Employer, disclose to any person or entity
any 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, 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 Employer 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, 


 


14

















 


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 or the commodities futures industry; provided that
such term shall not include knowledge, skills, and information that is common
to the trade or profession of Employee. 
If Employee fails to comply with any provision of this Section 11,
which failure (1) is inadvertent or unintentional, (2) occurs
notwithstanding Employee’s good faith effort to comply with this Section 11
and (3) does not, and is not likely to, result in significant loss to
Employer, then such failure shall not constitute a violation of any provision,
covenant or agreement of this Section 11 for purposes of this Agreement,
including Sections 6 and 12 hereof.


 


12.           Remedies.  Employee consents and agrees that if, during
the term of this Agreement, he violates any provisions of Sections 10 or 11 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 10 or 11 of this
Agreement.


 


If, at any time, Employee
violates, to any material extent, any of the covenants or agreements set forth
in Sections 10 or 11 of this Agreement, Employer shall have the right to
terminate the employment of Employee for Cause in accordance with the
provisions of paragraph (a) of Section 6.


 


13.           Indemnity.  Employer 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 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 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
Employer’s Articles of Incorporation and By-Laws, 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.


 


14.           Assignment.  Neither Employee nor Employer may assign this
Agreement, except that Employer’s obligations hereunder shall be binding legal
obligations of any successor to all or substantially all of Employer’s business
by purchase, merger, consolidation, or otherwise, and Employer will require any
such successor to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place.


 


15.           Employee.  No interest of Employee or his Spouse or any
other beneficiary under this Agreement, or any right to receive any payment or
distribution hereunder, shall be subject in 


 


15

















 


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 or
any other beneficiary, including claims for alimony, support, separate
maintenance, and claims in bankruptcy proceedings.


 


16.           Benefits Unfunded.  Except as otherwise provided in paragraph (b) of
Section 4; (1) all rights of Employee and his Spouse 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, and (2) neither
Employee nor his Spouse or any other beneficiary shall have any interest in or
rights against any specific assets of Employer, and Employee and his Spouse or
any other beneficiary shall have only the rights of a general unsecured
creditor of Employer.


 


17.           Release.  As a condition to receiving the payments
under Sections 6, 8 and 9 of 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”).  Employer shall deliver the Release to
Employee within ten (10) days of Employee’s termination of
employment.  No payments pursuant to Section 6,
8 or 9 shall be made prior to the date that both (i) Employee has
delivered an original, signed Release to the Employer and (ii) the
revocability period (if any) has elapsed; provided however, that any payments
that would otherwise have been made prior to such date but for the fact that
Employee had not yet delivered an original, signed Release (or the revocability
period had not yet elapsed) shall be made as soon as administratively
practicable but not later than the seventy-fourth (74th) day following Employee’s
termination of employment.  If Employee
does not deliver an original, signed Release to the Employer within forty-five
(45) days after receipt of the same from the Employer, (i) Employee’s rights
shall be limited to those made available to Employee as if Employee were
terminated under Section 6(d) above, and (ii) the Employer shall
have no obligation to pay or provide to Employee any amount or benefits
described in Sections 6, 8 or 9, or any other monies on account of the
termination of Employee’s employment.


 


18.           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.


 


19.           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.


 


20.           Compliance.


 


(a)           This Agreement is intended to comply
with 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 


 


16

















 


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.  Each payment under this Agreement is intended
to be treated as one of a series of separate payment for purposes of Section 409A
of the Code and Treas. Reg. § 1.409A-2(b)(2)(iii) (or any similar or
successor provisions).


 


(b)           Notwithstanding any provision to the
contrary, to the extent Employee is considered a “specified employee” (as
defined in Section 409A of the Code and Treas. Reg. §1.409A-1(c)(i) or
any similar or successor provision) and would be entitled to a payment during
the six month period beginning on Employee’s date of termination that is not
otherwise excluded under Section 409A of the Code under the exception for
short-term deferrals, separation pay arrangements, reimbursements, in-kind
distributions, or any otherwise applicable exemption, the payment will not be
made to Employee until the earlier of the six month anniversary of Employee’s
date of termination or Employee’s death and will be accumulated and paid on the
first day of the seventh month following the date of termination.


 


21.           Entire Agreement.  This Agreement contains the entire agreement
between Employer and Employee and supersedes any and all previous agreements,
written or oral, between the parties relating to the subject matter hereof,
including, but not limited to, 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.


 


22.           Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original.


 


23.           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 or more provisions in one 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.


 


24.           Successors.  This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs,
representatives and successors.


 


25.           Notices.  Notices required under this Agreement shall
be in writing and sent 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 Employer:


 


Alan
J. Dean, Executive Vice President


and
Chief Financial Officer 


Chicago
Board Options Exchange, Inc.


 


17

















 


400
S. LaSalle Street 


Chicago,
Illinois 60605


 


If to Employee:


 


William
J. Brodsky 


1223
North Astor Street 


Chicago,
Illinois 60610-2314


 


With a copy to:


 


Philip
L. Mowery


Vedder
Price Kaufman & Kammholz 


222
North LaSalle Street, Suite 2600 


Chicago,
Illinois 60601


 


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.


 


IN WITNESS WHEREOF, Employee has
hereunto set his hand, and Employer has caused these presents to be executed in
its name on its behalf, all as of the date first above written.


 


	
   

  	
  Chicago
  Board Options Exchange, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Eugene S. Sunshine

  
	
   

  	
   

  	
  Eugene
  S. Sunshine

  
	
   

  	
   

  	
  Title:

  	
  Chairman
  of the Compensation

  
	
   

  	
   

  	
   

  	
  Committee
  of the Board of Directors

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ William J. Brodsky

  
	
   

  	
  William J. Brodsky

  



 


18

















 


Exhibit A


 


RELEASE
OF CLAIMS


 


THIS RELEASE OF CLAIMS (“Release”)
is made and entered into this
              
day of
                          ,
200      , to be effective as of
                                                (the
“Effective Date”), by and between CHICAGO BOARD OPTIONS EXCHANGE,
INCORPORATED, a Delaware corporation (“CBOE”), and WILLIAM J. BRODSKY, a
resident of the State of Illinois (“Brodsky”).


 


1.             In consideration of CBOE’s
agreement to provide Brodsky with the severance pay and benefits described in
Sections 6, 8, and 9 of the attached Amended and Restated Employment Agreement
by and between CBOE and Brodsky (the “Employment Agreement”), to which
Brodsky is not otherwise entitled and the sufficiency of which Brodsky
acknowledges, Brodsky does hereby fully, finally and unconditionally release
and forever discharge CBOE and CBOE’s former and current officers, directors,
employees, members, representatives and agents and all of their respective
predecessors, successors, and assigns (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 Brodsky’s past employment with CBOE or
any past actions, statements, or omissions of CBOE or any of the Released
Parties occurring prior to Brodsky’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 Brodsky’s employment,
the termination of Brodsky’s employment, or any continuing effects of Brodsky’s
employment with CBOE.


 


2.             Brodsky agrees not to sue OBOE 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, Brodsky will not seek and will not accept any personal
equitable or monetary relief in connection with such investigation, action,
suit, or legal proceeding.


 


3.             Brodsky has forty-five (45) days (until
                              )
within which to consider this Release, although Brodsky may accept it at any
time within those forty-five (45) days. 
Once Brodsky has signed this Release, Brodsky will still have seven (7) days
in which to revoke his acceptance of the ADEA portion of the Release by
notifying CBOE, and specifically, 


 


A-1

















 


Deborah Woods, Human
Resources Department.  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 Brodsky.


 


4.             Brodsky agrees that he will
continue to be governed by those obligations arising under Paragraphs 10, 11
and 12 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.


 


5.             This Release shall be binding upon
and inure to the benefit of CBOE and its successors and assigns and Brodsky and
his heirs, executors and administrators.


 


6.             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:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  William
  J. Brodsky

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  CHICAGO
  BOARD OPTIONS EXCHANGE, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  



 


A-2