Exhibit 10.9
CHICAGO MERCANTILE
EXCHANGE
DIRECTORS’ DEFERRED
COMPENSATION PLAN
(As Amended and Restated
Effective January 1, 2009)
SECTION 1
General
1.1. History, Purpose and
Effective Date .
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(a)
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Chicago
Mercantile Exchange Inc. Directors’ Deferred Compensation
Plan (the “Plan”) was established, effective as of
February 1, 1996 by Chicago Mercantile Exchange, an Illinois
not-for-profit corporation, to provide non-employee members of its
Board of Directors with the opportunity to defer receipt of
compensation, thereby assisting such members in planning for their
future security. Pursuant to a series of demutualization
transactions and an agreement and plan of merger, effective as of
November 13, 2000, Chicago Mercantile Exchange Inc., a
shareholder-owned, for-profit Delaware corporation
(“CME”) succeeded to the assets, liabilities and
business of Chicago Mercantile Exchange and to the power, authority
and responsibility of Chicago Mercantile Exchange under and with
respect to the Plan. Effective as of December 3, 2001,
pursuant to a further corporate reorganization, CME became a
wholly-owned subsidiary of Chicago Mercantile Exchange Holdings
Inc. (“CME Holdings”), and non-employee members of the
Board of Directors of CME Holdings became eligible for
participation in the Plan. Pursuant to the merger on July 12,
2007 of CBOT Holdings, Inc. into CME Holdings, CME Holdings became
CME Group Inc. (“CME Group”).
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(b)
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Effective as of
January 1, 2009 (the “Effective Date”), the Plan
has been amended and restated to comply with Section 409A of
the Internal Revenue Code of 1986, as amended (the
“Code”). With respect to the period from
January 1, 2005 through December 31, 2008, the Plan was
administered with such operational modifications as the
Compensation Committee of CME deemed necessary or appropriate to
comply with Code Section 409A, including transition relief and
other guidance provided by the Internal Revenue Service.
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(c)
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Notwithstanding
anything herein to the contrary, the terms of the Plan as in effect
prior to January 1, 2005 shall apply to the portion (if any)
of a Participant’s Account that was credited as of
December 31, 2004, including credited earnings and losses with
respect thereto (the “Grandfathered Account”), and the
provisions of this amended and restated Plan shall not apply to
such Grandfathered Account except the provisions related to
administration of the Plan (Sections 1.2 and 7.1) and the Claims
Procedure set forth in Section 6.
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1.2. Administration . The Compensation
Committee of CME is the Plan Administrator of the Plan. The Plan
Administrator may delegate all or any part of its responsibilities
and powers to any person or persons selected by it. Any such
delegation may be revoked at any time. Until the Plan Administrator
takes action to the contrary, the Managing Director and Chief Human
Resources Officer of CME shall be delegated the power and
responsibility to take all actions assigned to or permitted to be
taken by the Plan Administrator under Sections 3 and 4 hereof. The
Secretary of CME (or, on behalf of the Secretary of CME, any
Corporate Secretary or Assistant Secretary) shall certify to any
interested person the names of the employees of CME who are, from
time to time, authorized to act on behalf of the Plan Administrator
and who are responsible for the day-to-day operation and
administration of the Plan. The Plan Administrator shall have the
sole discretion to make decisions and take any action with respect
to questions arising in connection with the Plan, including, but
not limited to, the construction and interpretation of the Plan,
the resolution of any ambiguities, the determination of the
conditions subject to which any benefits may be payable, the
resolution of all questions concerning the status and rights of a
Participant and others under the Plan, and whether a claimant is
eligible for benefits under the Plan, the determination of the
amount of benefits, if any, a claimant is entitled to receive, and
making any other determinations which it believes necessary or
advisable for the administration and operation of the Plan. Any
such decision or action shall be final and binding upon all
Participants and beneficiaries, and benefits under the Plan shall
be paid only if the Plan Administrator decides in its discretion
that the claimant is entitled to them. The Plan
Administrator’s decision or action in respect of any of the
above shall be conclusive and binding upon all Participants and
their beneficiaries, heirs, assigns, administrators, executors and
any other person claiming through or under them.
1.3. Plan Year . The term “Plan
Year” means the calendar year.
1.4. Source of Benefit Payments .
Subject to the terms and conditions of the Plan, any amount payable
to or on account of a Participant under this Plan shall be paid
from the general assets of CME or from one or more trusts, the
assets of which are subject to the claims of CME’s general
creditors. The amounts payable hereunder shall be reflected on the
accounting records of CME but shall not be construed to create, or
require the creation of, a trust, custodial or escrow account. None
of the individuals entitled to benefits under the Plan shall have
any preferred claim on, or any beneficial ownership interest in,
any assets of CME or to any investment reserves, accounts, trusts
or funds that CME may purchase, establish or accumulate to aid in
providing the benefits under the Plan, and any rights of such
individuals under the Plan shall constitute unsecured contractual
rights only. Nothing contained in the Plan shall constitute a
guarantee by CME that the assets of CME shall be sufficient to pay
any benefits to any person. Nothing contained in the Plan and no
action taken pursuant to its provisions shall create a trust or
fiduciary relationship of any kind between CME and any
person.
1.5. Expenses . The expenses of
administering the Plan shall be borne by CME.
1.6. Applicable Laws . The Plan shall
be construed and administered in accordance with the laws of the
State of Illinois.
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1.7. Gender and Number . Where the
context admits, words in any gender shall include any other gender,
words in the singular shall include the plural and the plural shall
include the singular.
1.8. Notices . Any notice or document
required to be given to or filed with the Plan Administrator will
be properly filed if delivered or mailed by registered mail,
postage prepaid, to the Secretary of CME, at its principal
executive offices. The Plan Administrator may, by advance written
notice to affected persons, revise such notice procedure from time
to time. Any notice required under the Plan may be waived by the
person entitled to notice.
1.9. Evidence . Evidence required of
anyone under the Plan may be by certificate, affidavit, document or
other information which the person acting on it considers pertinent
and reliable, and signed, made or presented by the proper party or
parties.
1.10. Action by CME . Any action
required or permitted to be taken by CME shall be by resolution of
its Board of Directors or its delegate (the “Board”),
the Executive Committee of the Board, or a duly authorized officer
of CME.
SECTION 2
Participation
2.1. Participant . Each non-employee
member of the Board (a “Director”) may become a
“Participant” in the Plan by making a deferral election
in accordance with Section 3.2.
2.2. Plan Not Guarantee of Continued
Service . Participation in the Plan will not give any
Director the right to be retained as a member of the Board nor any
right or claim to any benefit under the Plan, unless such right or
claim has specifically accrued under the terms of the
Plan.
SECTION 3
Deferred Compensation; Plan
Accounting
3.1. Deferred Compensation Account .
The Plan Administrator shall maintain, or cause to be maintained,
an Account in the name of each Participant which shall reflect the
sum of the following amounts:
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(a)
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the amount
deferred by the Participant in accordance with the provisions of
Section 3.2; and
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(b)
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the assumed
earnings to be credited to the Participant’s Account in
accordance with Section 3.3.
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A Participant’s Account shall
be segregated according to the Plan Year to which credits to the
Account relate (each such segregated portion of the Account is
sometimes referred to herein as a “Plan Year Account”).
The beginning balance of each Participant’s Plan Year Account
on the Effective Date shall be the amount credited to such Plan
Year Account under the Plan as in effect immediately prior to the
Effective Date.
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3.2. Deferral Election .
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(a)
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Subject to such
terms, conditions, and limitations as the Plan Administrator may,
from time to time, impose, a Participant may make an irrevocable
election to defer receipt of up to 100% of the Eligible Payments
earned by him from CME with respect to any Plan Year, by filing a
deferral election in writing with the Plan Administrator at such
time and in such manner as the Plan Administrator shall provide,
but in no case later than the day preceding the first day of such
Plan Year. Notwithstanding the preceding sentence, a newly elected
or appointed Director may file such a deferral election within 30
days of becoming eligible to participate in the deferral election
feature of the Plan with respect to all or a portion of the
Eligible Payments earned by him after such election is filed. For
purposes hereof, “Eligible Payments” means Board
stipends, Board meeting fees, committee meeting fees, functional
committee fees, and consulting fees.
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(b)
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The Account of
each Participant shall be credited with the amount of Eligible
Payments deferred by the Participant as of the date on which such
amount would otherwise have been paid to the Participant or such
other date as the Plan Administrator may reasonably
provide.
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3.3. Adjustment of Accounts . The
amounts credited to a Participant’s Account in accordance
with
