Exhibit 10.2
THE NASDAQ OMX GROUP,
INC.
PERFORMANCE SHARE UNIT AGREEMENT
This PERFORMANCE SHARE UNIT
AGREEMENT (this “ Agreement ”) between The
NASDAQ OMX Group, Inc., a Delaware corporation (the “
Company ”), and Robert Greifeld (the “
Grantee ”) memorializes the approval by the Management
Compensation Committee of the Board of Directors of the Company
(the “ Committee ”) on March 23, 2009 of
(i) the grant of performance share units to the Grantee
pursuant to the terms of that certain Amended and Restated
Employment Agreement by and between the Company and the Grantee,
effective as of January 1, 2007 (the “ Employment
Agreement ”), and (ii) the performance goal with
respect to such performance share units.
RECITALS:
The Company has adopted The NASDAQ
OMX Group, Inc. Equity Incentive Plan (the “ Plan
”), which Plan is incorporated herein by reference and made a
part of this Agreement. The Plan in relevant part provides for the
issuance of stock-based awards that are subject to the attainment
of performance goals as established by the Committee.
The Committee has determined that it
is in the best interests of the Company and its stockholders to
grant the performance share units provided for herein to the
Grantee pursuant to the Plan and under the terms set forth herein
as an increased incentive for the Grantee to contribute to the
Company’s future success and prosperity.
Capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Plan
or the Employment Agreement, as the case may be.
NOW, THEREFORE, in consideration of
the mutual covenants hereinafter set forth, the parties hereto
agree as follows:
1. Grant of Performance-Based
Award . The Company hereby grants to the Grantee 80,000
performance share units (the “ Performance Share Units
”), which Performance Share Units shall entitle the Grantee
to receive up to 120,000 Shares (or a lesser number of Shares, or
no Shares whatsoever), all in accordance with the terms and
conditions set forth herein. Shares corresponding to the
Performance Share Units granted herein are in all events to be
delivered to the Grantee only after the Grantee has become vested
in the Performance Share Units pursuant to Section 4,
below.
2. Performance Period . For
purposes of this Agreement, the term “ Performance
Period ” shall be the period commencing on
January 1, 2009 and ending on December 31,
2011.
3. Performance Goal . The
Performance Goal is set out in Appendix A hereto, which Appendix A
is incorporated by reference herein and made a part hereof.
Depending upon the extent, if any, to which the Performance Goal
has been achieved, and subject to compliance with the requirements
of Section 4, each Performance Share Unit shall entitled the
Grantee to
receive upon completion of the Performance
Period between 0 and 1.5 Shares. The Committee shall, as soon as
practicable following the last day of the Performance Period,
certify (i) the extent, if any, to which, in accordance with
Appendix A, the Performance Goal has been achieved with respect to
the Performance Period and (ii) the number of whole and/or
partial Shares, if any, which, subject to compliance with the
requirements of Section 4, the Grantee shall be entitled to
receive with respect to each Performance Share Unit (with such
number of whole and/or partial Shares being hereafter referred to
as the “ Share Delivery Factor ”). Such
certification shall be final, conclusive and binding on the
Grantee, and on all other persons, to the maximum extent permitted
by law.
4. Vesting of Performance Share
Units . The Performance Share Units are subject to forfeiture
to the Company until they become nonforfeitable in accordance with
this Section 4. Subject to the provisions of Section 6,
the risk of forfeiture will lapse on all Performance Share Units,
and all Performance Share Units shall thereupon become vested, upon
the completion of the Performance Period.
5. Delivery of Stock
Certificates . A certificate in the number of whole Shares (if
any) equal to the product of (i) the number of vested
Performance Share Units multiplied by (ii) the Share Delivery
Factor (with such product rounded up to the next whole number)
shall be registered in the name of the Grantee and delivered to the
Grantee or the Grantee’s legal representative not later than
30 days following the aforementioned certification by the
Committee, but in no event later than the June 30
th that immediately follows the completion of the
Performance Period, provided that the Grantee has otherwise
complied with the requirements of Section 12. Notwithstanding
the foregoing, no certificate shall in any event be so registered
or delivered in the event that the Grantee has not complied with
the requirements of Section 12 by such June 30
th .
6. Termination of Employment
.
(a) In the event that (1) the
Company terminates the Grantee’s employment with the Company
for Cause or (2) the Grantee terminates his employment with
the Company without Good Reason, all Performance Share Units which
have not as of the Date of Termination become vested shall be
cancelled and forfeited, effective as of the Date of Termination,
without further consideration to the Grantee.
(b) In the event that (1) the
Company terminates the Grantee’s employment with the Company
without Cause, (2) the Grantee terminates his employment with
the Company for Good Reason, (3) the Grantee’s
employment with the Company terminates by reason of death,
Permanent Disability or Retirement, or (4) the Grantee’s
employment with the Company terminates by reason of the delivery of
a Non-Renewal Notice by either the Company or the Grantee, all
Performance Share Units shall become vested in accordance with the
provisions of Section 4 as if the Grantee’s employment
had not terminated; provided, however , that in the event
the Grantee breaches any of his obligations under Section 9 or
10 of the Employment Agreement, any unvested Performance Share
Units or vested Performance Share Units for which Share
certificates have not yet been delivered shall be deemed cancelled
and forfeited without further consideration to the
Grantee.
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7. Repayment; Recalculation of
Number of Shares to be Delivered . If the Company, for any
reason, downwardly restates its financial results with respect to
the fiscal year of the Company ending December 31, 2008 or the
fiscal year of the Company ending December 31, 2011, the
Committee, in its sole discretion, may, to the extent permitted by
law and to the extent it determines in its sole judgment that it is
in the best interests of the Company to do so, redetermine
(i) the extent, if any, to which, in accordance with Appendix
A, and based upon such restated financial results, the Performance
Goal has been achieved with respect to the Performance Period and
(ii) the number of whole and partial Shares, if any, which,
subject to compliance with the requirements of Section 4, the
Grantee shall thereupon be (or shall have been, as the case may be)
entitled to receive with respect to each Performance Share Unit
(with such number of whole or partial Shares being hereafter
referred to as the “ Revised Share Delivery Factor
”). If the Committee in fact takes such action, (i) in
the event that Shares have not yet been delivered to the Grantee
pursuant to the provisions of Section 5, the number of Shares
to be delivered shall instead be determined based upon the Revised
Share Delivery Factor and (ii) in the event that Shares have
already been delivered, the Committee shall require the repayment
by the Grantee to the Company of that number of Shares equal to the
difference between the number of Shares so delivered and the lesser
number of Shares which would have been delivered based upon the
Revised Share Delivery Factor.
8. Tax Consequences . The
Grantee acknowledges that the Company has not advised the Grantee
regarding the Grantee’s income tax liability in connection
with the grant or vesting of the Performance Share Units and the
delivery of Shares in connection therewith. The Grantee has
reviewed with the Grantee’s own tax advisors the federal,
state, and local and tax consequences of the grant and vesting of
the Performance Share Units and the delivery of Shares in
connection therewith as contemplated by this Agreement. The Grantee
is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Grantee
understands that the Grantee (and not the Company) shall be
responsible for the Grantee’s own tax liability that may
arise as a result of the transactions contemplated by this
Agreement.
9. Transferability
.
(a) Except as provided below, the
Performance Share Units are nontransferable and may not be
assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by the Grantee, except by will or the
laws of descent and distribution,
