Exhibit 10.8.1
AMENDMENT TO
EMPLOYMENT
AGREEMENT
THIS AMENDMENT (the “
Amendment ”) is entered as of December 31, 2008,
by and between The NASDAQ OMX Group, Inc. (the “
Company ”) and Robert Greifeld (the “
Executive ”).
WHEREAS, the Executive and the
Company (f/k/a/ The Nasdaq Stock Market, Inc.) entered into an
employment agreement, dated as of May 12, 2003 and
subsequently amended and restated that employment agreement
effective as of January 1, 2007 (the “ 2007
Agreement ”); and
WHEREAS, the Executive and the
Company now desire to amend and the 2007 Agreement so as to reflect
the provisions of Section 409A of the Internal Revenue Code
and the final regulations issued thereunder, which amendment is to
be effective as of January 1, 2007.
NOW, THEREFORE, in consideration of
the premises and mutual covenants herein and for other good and
valuable consideration, the parties hereby amend the provisions of
the 2007 Agreement, as set out below. Except to the extent so
amended, all of the provisions of the 2007 Agreement shall remain
in full force and effect in accordance with their terms.
The 2007 Agreement is hereby
amended, as follows:
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1.
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The second
sentence of Section 3 thereof is amended and restated, as
follows:
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The Base Salary shall be payable in
regular payroll installments in accordance with the Company’s
payroll practices as in effect from time to time (but no less
frequently than monthly).
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2.
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Section 6(b) is amended, as
follows:
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(b) SERP Participation and
Provisions. The Executive shall continue to participate in The
NASDAQ OMX Group, Inc. Supplemental Executive Retirement Plan, as
amended and restated effective as of December 31, 2008
(formerly, the Nasdaq Stock Market, Inc. Supplemental Executive
Retirement Plan, the “SERP” ). The Company
reserves the right to modify or terminate the SERP at any time.
Notwithstanding any term or condition contained in the SERP to the
contrary, and subject to the Company’s right to modify or
terminate the SERP at any time:
(i) Section 5.1 of the SERP
shall be applied as if the age and service requirements stated
therein were age 49 and four years of service rather than age 55
and ten years of service. Accordingly, the Executive shall be 100%
vested in his accrued SERP benefit upon the later of his attainment
of age 49 while employed and his completion of four years of
service.
(ii) Section 5.1 of the SERP
shall be applied as if the age and service requirements stated
therein were satisfied upon the Executive’s termination of
employment by the Company without Cause or by the Executive for
Good Reason
pursuant to Section 8(b) below.
Accordingly, under such circumstances, the Executive shall be 100%
vested in his SERP benefit even if his employment terminates prior
to his attaining age 49 and having completed four years of service
with the Company.
(iii) The death benefit provided in
Sections 8.1 and 8.2 of the SERP shall become payable if the
Executive dies before his SERP benefit commences, but after having
satisfied the requirements of Section 5.1 of the SERP prior to
modification by Section 6(b) (i) above (and, if the
foregoing conditions are satisfied, such death benefit will be
payable even if the Executive’s death occurs after he has
left employment with vested rights under the SERP, but
before payment of the SERP benefit commences).
(iv) Sections 6.4 and 7.4 of the
SERP (relating to early retirement) shall apply only if the
Executive has at least five years of service; provided that
this special rule shall not permit the Executive’s SERP
benefit to start earlier than age 55.
(v) The provisions of this
Section 6(b) shall not accelerate the rate at which the SERP
benefit accrues so that the amount of the accrued SERP benefit
shall be determined with reference to an accrual over a period of
3,650 days as provided in the SERP definition of “Accrued
Benefit.”
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3.
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Section 7(a) is amended, by the adding the
following two sentences to the end there, as follows:
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All such reimbursements shall be
made no later than the last day of the calendar year following the
calendar year in which the Executive incurs the reimbursable
expense. Additionally, the amount of expenses eligible for
reimbursement during one calendar year may not affect the expenses
eligible for reimbursement or any in-kind benefits to be provided
in any other calendar year and the right to reimbursement is not
subject to liquidation or exchange for another benefit.
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4.
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The final
sentence of Section 7(b) is deleted and replaced, as
follows:
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The Company shall conduct a security
audit of up to two of the Executive’s personal residences and
reimburse the Executive during calendar year 2010 for up to $50,000
of the cost of upgrading or installing the Executive’s home
security systems, regardless of whether such expenses were incurred
in 2010 or in 2009; provided , however , that, to the
extent elected by the Executive in writing no later than
December 31, 2008, the Company shall instead reimburse the
Executive during calendar year 2009 for up to $50,000 of the cost
incurred in 2009 of upgrading or installing the Executive’s
home security systems.
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5.
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Section 7(c) is deleted.
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6.
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Clause
(i) of the first sentence of Section 8(a) is amended and
restated, as follows:
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(i) any unpaid Base Salary through
the Date of Termination, to be paid in accordance with the
Company’s payroll practices as described in Section 3
above,
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7.
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Section 8(b)(i)(A) is amended and restated,
as follows:
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Severance Payment.
The Company shall pay the Executive
an amount (the “ Severance Payment ”) equal to
the sum of (I) the Base Salary paid to the Executive with
respect to the calendar year immediately preceding the
Executive’s Date of Termination and (II) the Annual Bonus for
the calendar year immediately preceding the Executive’s Date
of Termination, payable in substantially equal monthly installments
for the twelve month period following the Executive’s Date of
Termination, with the first installment to be paid in the month
following the month in which the Date of Termination occurs (the
“ Severance Period ”), or, if required to avoid
the imposition of tax, interest or penalties under
Section 409A of the Internal Revenue Code of 1986, as amended
(“Section 409A”) beginning on the date that is six
months and one day after the date of the Executive’s
“separation from service” within the meaning of
Section 409A, in which case the first payment shall include
all amounts that would have been paid on earlier payroll dates but
for such delay.
