CHANGE IN CONTROL

 

 JAMES E. NEWSOME

EXECUTION COPY

 

EMPLOYMENT AGREEMENT

 

EMPLOYMENT AGREEMENT dated as of August 2, 2004, by and between NYMEX HOLDINGS, INC. (“NYMEX Holdings”) and NEW YORK MERCANTILE EXCHANGE, INC., (“NYMEX” and together with NYMEX Holdings, the “Company”), and JAMES E. NEWSOME (the “Executive”).

 

WHEREAS, the Company wishes to retain the services of the Executive in the capacity of President upon the terms and conditions set forth and Executive wishes to accept such employment;

 

NOW, THEREFORE, in consideration of the mutual promises contained therein, the parties mutually agree as follows:

 

1. Term. The Company hereby employs the Executive, and the Executive hereby accepts such employment, for a term commencing as of August 2, 2004 and ending on August 1, 2007, unless sooner terminated in accordance with the provisions of Section 4 or Section 5 (the “Term”); the Term may be extended or renewed only by the mutual written agreement of the parties.

 

2. Duties. During the Term, the Executive shall be employed by the Company as President of the Company, and, as such, the Executive shall faithfully perform for the Company the duties of said office and shall perform such other duties of an executive, managerial or administrative nature, consistent with his office, as shall be specified and designated from time to time by the Board of Directors of the Company (the “Board”). The Executive shall devote substantially all of his business time and effort to the performance of his duties hereunder.

 

3. Compensation.

 

3.1 Salary. The Company shall pay the Executive during the Term a salary at the annual rate of: $700,000 (Year 1: 8/2/04 – 8/1/05); $700,000 (Year 2: 8/2/05 – 8/1/06); and $900,000 (Year 3: 8/2/06 – 8/1/07). The Annual Salary shall be payable in accordance with the customary payroll practices of the Company applicable to its senior executives.

 

3.2 Sign-on Bonus. Within five (5) days of Executive’s commencement of employment with Company, Company shall pay to the Executive, in a single lump sum, a sign-on bonus of four hundred thousand dollars ($400,000) less applicable deductions and withholdings (“Sign-on Bonus”).

 

3.3 Annual Bonus.

 

In addition to the Annual Salary, Executive will be eligible to be considered for a bonus payment in relation to each year, including any partial year of employment. The Company shall in its absolute discretion in accordance with its established procedures for senior executives, determine whether any such bonus payment will be made to any employees and if to some employees, whether to Executive, and the amount thereof (if any). Payment of a bonus amount in relation to one or more years will under no circumstances give rise to any entitlement to a bonus payment in relation to any other year.


3.4 Benefits.

 

(a) The Executive shall be permitted during the Term to participate in any group life, hospitalization or disability insurance plans, health programs, retirement plans, fringe benefit programs and similar benefits that may be available to other senior executives of the Company generally, on the same terms as such other executives, in each case to the extent that the Executive is eligible under the terms of such plans or programs.

 

(b) The Executive shall be entitled to twenty (20) vacation days per annum, prorated for partial years, and two (2) personal days per year.

 

(c) The Company shall pay (or reimburse) Executive for reasonable moving expenses to assist Executive in relocating to the New York area, including, but not limited to, travel costs associated with seeking permanent housing, actual packing and moving costs, and the cost of temporary housing.

 

3.5 Grant of Option/Equity.

 

(a) In the future, the Company may seek to pursue an initial public offering or private placement of equity securities. The Executive acknowledges that an initial public offering or private placement might not be completed, and the Company has not promised that either will in fact occur on any particular terms or to any extent whatsoever. The Company reserves, without limitation, the right to change its plans in this regard at any time and will incur no liability to the Executive if it does so.

 

(b) If and when the Company completes an initial public offering or private placement of its equity securities, effective not later than the closing of the initial public offering or private placement, the Executive shall be granted an option or other equity or equity-based interest (the “Option/Equity”), subject to such terms and conditions (including without limitation provisions relating to method of exercise and payment, vesting, withholding, limited periods after termination of employment within which the Option/Equity may be exercised, non-transferability and rights of repurchase and first refusal) as may be determined by the Board of Directors (or other governing body) of the entity granting the Option/Equity, which shall be comparable to the provisions of options granted to other senior officers and executives of the Company.

 

3.6 Expenses. The Company shall pay or reimburse the Executive for all ordinary and reasonable out-of-pocket expenses actually incurred (and, in the case of reimbursement, paid) by the Executive during the Term in the performance of the Executive’s services under this Agreement; provided that the reimbursement requests are in compliance with expense reimbursement policies adopted from time to time by the Board.

 

4. Termination upon Death or Disability. If the Executive dies during the Term, the Term shall terminate as of the date of death, and the obligations of the Company to or with respect to the Executive shall terminate in their entirety upon such date except as otherwise provided under this Section 4. If the Executive by virtue of ill health or other disability is unable (including with reasonable accommodation) to perform substantially and continuously the duties assigned to him for more than 120 consecutive or non-consecutive days out of any consecutive 12-month period, the Company shall have the right, to the extent permitted by law, to terminate the employment of the Executive upon notice in writing to the Executive. Upon termination of employment due to death or disability, in addition to any insurance benefits that may be payable, (i) the Executive (or the Executive’s estate or beneficiaries in the case of the death of the Executive) shall be entitled to receive any Annual Salary and other benefits earned and accrued under this Agreement prior to the date of termination (and reimbursement under this Agreement


for expenses incurred prior to the date of termination) and (ii) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder, except as required by applicable law.

 

5. Certain Terminations of Employment.

 

5.1 Termination for Cause; Voluntary Termination of Employment by the Executive.

 

 

(a)

For purposes of this Agreement, “Cause” shall mean the Executive’s:

 

 

(i)

violation, involving dishonesty, breach of trust or bad faith, of any statute, regulation or rule in the areas of commodities or securities regulation that results in sanctions against the Executive or the Company;

 

 

(ii)

any intentional act of fraud, embezzlement, theft or misappropriation of Company funds by Executive, as determined after investigation by the Board, or Executive’s admission or conviction of a felony or of any crime involving moral turpitude, fraud, embezzlement, theft or misrepresentation;

 

 

(iii)

failure to devote substantially all of his business time and efforts to the Company and failure to cure such breach within ten business days following the Executive’s receipt of written notice from the Company specifying such breach;

 

 

(iv)

material breach of any of the provisions of Section 6.1; or

 

 

(v)

breach in any material respect of the terms and provisions of this Agreement and failure to cure such breach within ten business days following the Executive’s receipt of written notice from the Company specifying such breach.

 

(b) The Company may terminate the Executive’s employment hereunder for Cause at any time.

 

(c) The Executive may terminate his employment, for Good Reason or otherwise, on at least 30 days’ and not more than 60 days’ written notice given to the Company. For purposes of this Agreement, “Good Reason” shall mean, without the Executive’s consent:

 

(i) relocation by the Company of the Executive’s principal place of employment by more than 50 miles from New York City;

 

(ii) a material breach by the Company of the terms of this Agreement and failure to cure such breach within ten business days following the Company’s receipt of written notice from the Executive specifying such breach; or

 

(iii) there is a demotion or significant diminution in Executive’s responsibilities under the Agreement and failure to cure such breach within ten business days following the Company’s receipt of written notice from the Executive specifying such breach.

 

(d) If the Company terminates the Executive for Cause, or upon any other termination not covered by Section 4 or Section 5.2 (including termination by the Executive not for Good Reason), (i) the Executive shall be entitled to receive Annual Salary and other benefits (but, in all events,


and without increasing the Executive’s rights under any other provision hereof, excluding any bonuses not yet paid) earned and accrued under this Agreement prior to the termination of employment (and reimbursement under this Agreement for expenses incurred prior to the termination of employment); and (ii) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder, except as required by applicable law.

 

(e) If the Executive’s employment is terminated in Year 1 or Year 2 of the Agreement, Executive shall repay to the Company a portion of the Sign-on Bonus within thirty (30) business days of termination in accordance with the following schedule: (104 weeks minus number of weeks worked) multiplied by $3846. This repayment may also be deducted from any payment by the Company made pursuant to Section 5.2.

 

5.2 Termination by the Company without Cause; Termination by the Executive for Good Reason.

 

(a) The Company may terminate the Executive’s employment at any time for any reason or no reason. If the Company terminates the Executive’s employment other than for Cause, or if the Executive terminates his employment for Good Reason in accordance with Section 5.1(c), and in either such case the termination is not covered by Section 4 or 5.3:

 

(i) the Executive shall receive Annual Salary and other benefits earned and accrued under this Agreement prior to the termination of employment (and reimbursement under this Agreement for expenses incurred prior to the termination of employment);

 

(ii) the Executive shall receive (subject to the Executive’s execution of a general release in a form and substance satisfactory to the Company): (A) a cash payment equal to nine hundred thousand dollars ($900,000), one-third of which will be payable within five business days after the date of termination of employment and two-thirds of which will be payable in equal bi-weekly installments through the applicable Restricted Period; (B) for a period equal to the shortest of (x) twelve months after termination of employment, (y) the period ending when the Executive commences full-time employment with another employer and then or subsequently receives or is entitled to receive (without regard to any waivers) health insurance benefits or (z) the period ending 90 days after the Executive commences full-time employment with another employer, such continuing coverage under the group health plans as the Executive would have received under this Agreement (and at such costs to the Executive) as would have applied in the absence of such termination; and

 

(iii) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder, except as required by applicable law.

 

5.3 Termination Upon Failure to Agree Upon Renewal Terms. If the Company and Executive fail to agree on terms for renewal at the end of the Term (as determined under the time-based provisions of Section 1 without regard to early termination under Section 4 or 5) and Executive’s employment terminates at the end of the Term (as so determined), and in such case the termination is not covered by Section 4 or the “Cause” provision of section 5.1:

 

(i) the Executive shall receive Annual Salary and other benefits earned and accrued under this Agreement prior to the termination of employment (and reimbursement under this Agreement for expenses incurred prior to the termination of employment); and


(ii) the Executive shall receive a cash payment equal to nine hundred thousand dollars ($900,000) (subject to the Executive’s execution of a standard, general release in a form and substance satisfactory to the Company), one-third of which will be payable within five business days after the date of termination and two-thirds of which will be payable in equal bi-weekly installments through the applicable Restricted Period.

 

6. Covenants of the Executive.

 

6.1 Covenant Against Competition; Other Covenants. The Executive acknowledges that (i) the principal business of the Company (which expressly includes for purposes of this Section 6, its successors and assigns, any holding or parent company and the direct and indirect subsidiaries of the Company, its successors and assigns and any such holding or parent company) is the operation of a commodities exchange for the trading and/or clearing of futures and options contracts, risk management or other derivative instruments on commodities in the energy and metals sectors (such business, together with the operation of a commodities exchange for the trading and/or clearing of any other futures or options contracts that may in the future, during the pendency of executive’s employment, be listed by the Company or any entity that is then an affiliate of the Company, herein being collectively referred to as the “Business”); (ii) the Company is one of the limited number of entities in both the United States and in the world that have developed such a business; (iii) the Company’s Business is, in part, both national and international in scope and an integral part of the Company’s Business is the expansion of its products on a global scale and the establishment of essential elements of the Business in numerous portions of the world; (iv) the Executive’s work for the Company has given and will continue to give him access to certain confidential, proprietary information of the Company; (v) the covenants and agreements of the Executive contained in this Section 6 are essential to the business and goodwill of the Company; and (vi) the Company would not have entered into this Agreement but for the covenants and agreements set forth in this Section 6. Accordingly, the Executive covenants and agrees that:

 

(a) By and in consideration of the salary and benefits to be provided by the Company hereunder, including the severance arrangements set forth herein, and further in consideration of the Executive’s exposure to the proprietary information of the Company, the Executive covenants and agrees that, during the applicable Restricted Period (as hereinafter defined), he shall not either in the continental United States or elsewhere, directly or indirectly, (i) engage in any material element of the Business, (ii) render any services to any person, corporation, partnership or other entity (other than the Company or its affiliates) engaged in any material element of the Business, or (iii) become interested in any such person, corporation, partnership or other entity (other than the Company or its affiliates) as a partner, shareholder, principal, agent, employee, consultant or in any other relationship or capacity; provided, however, that, notwithstanding the foregoing, the Executive may invest in securities of any entity, solely for investment purposes and without participating directly in the business thereof, if (A) such securities are traded on any national securities exchange or the National Association of Securities Dealers, Inc. Automated Quotation System, (B) the Executive is not a controlling person of, or a member of a group which controls, such entity and (C) the Executive does not, directly or indirectly, own 1% or more of any class of securities of such entity. As used in this Agreement, the “Restricted Period” means the period beginning on the date of this Agreement and ending one year after the date on which Executive’s employment with the Company is terminated.

 

(b) From the date hereof and following the termination of the Executive’s employment with the Company for any reason, the Executive shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its affiliates, all confidential matters relating to the Company’s Business and the business of any of its affiliates and to the Company and any of its affiliates, learned by the Executive heretofore or hereafter directly or indirectly from the Company or any of its affiliates (the


“Confidential Company Information”), and shall not disclose such Confidential Company Information to anyone outside of the Company except with the Company’s express written consent and except for Confidential Company Information which is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Executive or is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement.

 

(c) From the date hereof and for a period of one year after the termination of the Executive’s employment with the Company, the Executive shall not, without the Company’s prior written consent, directly or indirectly, (i) solicit or encourage to leave the employment or other service of the Company, or any of its affiliates, any employee or independent contractor thereof or (ii) hire (on behalf of the Executive or any other person or entity) any employee or independent contractor who has left the employment or other service of the Company or any of its affiliates within the one-year period which follows the termination of such employee’s or independent contractor’s employment or other service with the Company and its affiliates. From the date hereof and for a period of one year after the termination of the Executive’s employment with the Company, the Executive will not, whether for his own account or for the account of any other person, firm, corporation or other business organization, intentionally interfere with the Company’s or any of its affiliates’ relationship with, or endeavor to entice away from the Company or any of its affiliates, any person who during the Term is or was a customer or client of the Company or any of its affiliates. During the Restricted Period, the Executive shall not publish any statement or make any statement under circumstances reasonably likely to become public that is critical of the Company or any of its affiliates, or in any way adversely affecting or otherwise maligning the Business or reputation of the Company or any of its affiliates.

 

(d) All memoranda, notes, lists, records, property and any other tangible product and documents (and all copies thereof), whether visually perceptible, machine-readable or otherwise, made, produced or compiled by the Executive or made available to the Executive concerning the business of the Company or its affiliates, (i) shall at all times be the property of the Company (and, as applicable, any affiliates) and shall be delivered to the Company at any time upon its request, and (ii) upon the Executive’s termination of employment, shall be returned to the Company within five (5) business days of Executive’s termination.

 

(e) During the Term, the Executive shall disclose to Company and treat as confidential information all ideas, methodologies, product and technology applications that he develops during the course of his employment with Company that relates directly or indirectly to Company’s business. Executive hereby assigns to Company his entire right, title and interest in and to all discoveries and improvements, patentable or otherwise, trade secrets and ideas, writings and copyrightable material, which may be conceived by Executive or developed or acquired by him during his employment with Company, which may pertain directly or indirectly to the business of the Company. Executive shall at any time during or after the Agreement Term, upon Company’s request, execute, acknowledge and deliver to Company all instruments and do all other acts which are necessary or desirable to enable Company to file and prosecute applications for, and to acquire, maintain and enforce, all patents, trademarks and copyrights in all countries with respect to intellectual property developed or which was being developed during Executive’s employment with Company.

 

6.2 Rights and Remedies upon Breach.

 

The Executive acknowledges and agrees that any breach by him of any of the provisions of Section 6.1 (the “Restrictive Covenants”) would result in irreparable injury and harm for which money damages would not provide an adequate remedy. Therefore, if the Executive breaches, or threatens to commit a breach of, any of the provisions of Section 6.1, the Company and its affiliates shall


have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and all of which rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company and its affiliates under law or in equity (including, without limitation, the recovery of damages):

 

(i) The right and remedy to have the Restrictive Covenants specifically enforced (without the need to prove damages) by any court having equity jurisdiction, including, without limitation, the right to an entry against the Executive of restraining orders and injunctions (preliminary, mandatory, temporary and permanent) against violations, threatened or actual, and whether or not then continuing, of such covenants; and

 

(ii) The right and remedy to require the Executive to account for and pay over to the Company and its affiliates all compensation, profits, monies, accruals, increments or other benefits (collectively, “Benefits”) derived or received by him as the proximate result of any actions constituting a breach of the Restrictive Covenants, and the Executive shall account for and pay over such Benefits to the Company and, if applicable, its affected affiliates.

 

The Executive agrees that in any action seeking specific performance or other equitable relief, he will not assert or contend that any of the provisions of this Section 6 are facially unreasonable or otherwise facially unenforceable. The existence of any claim or cause of action by the Executive, whether predicated on this Agreement or otherwise, shall not limit the Company’s right to enforce the Restrictive Covenants.

 

7. Other Provisions.

 

7.1 Severability. The Executive acknowledges and agrees that (i) he has had an opportunity to seek advice of counsel in connection with this Agreement and (ii) the Restrictive Covenants are reasonable in geographical and temporal scope and in all other respects. If it is determined that any of the provisions of this Agreement, including, without limitation, any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the provisions of this Agreement shall not thereby be affected and shall be given full effect, without regard to the invalid portions.

 

7.2 Duration and Scope of Covenants. If any court or other decision-maker of competent jurisdiction determines that any of the Executive’s covenants contained in this Agreement, including, without limitation, any of the Restrictive Covenants, or any part thereof, is unenforceable because of the duration or geographical scope of such provision, then, after such determination has become final and unappealable, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced.

 

7.3 Enforceability; Jurisdiction. The Company and the Executive intend to and hereby confer jurisdiction to enforce the Restrictive Covenants set forth in Section 6 any Federal or State court sitting in the State of New York. The parties hereby agree to waive any right to a trial by jury for any and all disputes hereunder (whether or not relating to the Restricted Covenants).


7.4 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally or, if mailed, five days after the date of deposit in the United States mails as follows:

 

 

(i)

If to the Company, to:

 

NYMEX Holdings, Inc.

One North End Avenue

New York, New York 10282

Attention: General Counsel

 

 

(ii)

If to the Executive, to him at:

 

Crowell and Moring LLP

1001 Pennsylvania Ave. NW

Washington, DC 20004-2595

Attention: Kris D. Meade, Esq.

 

Any such person may by notice given in accordance with this Section 7.4 to the other parties hereto designate another address or person for receipt by such person of notices hereunder.

 

7.5 Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect thereto.

 

7.6 Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege nor any single or partial exercise of any such right, power or privilege, preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.

 

7.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.

 

7.8 Assignment. This Agreement, and the Executive’s rights and obligations hereunder, may not be assigned by the Executive; any purported assignment by the Executive in violation hereof shall be null and void. In the event of any sale, transfer or other disposition of all or substantially all of the Company’s assets or business, whether by merger, consolidation or otherwise, the Company may assign this Agreement and its rights hereunder.

 

7.9 Withholding. The Company shall be entitled to withhold from any payments or deemed payments any amount of tax withholding it determines to be required by law.

 

7.10 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, heirs, executors and legal representatives.

 

7.11 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original but all such counterparts together shall constitute one and the same instrument. Each counterpart may consist of two copies hereof, each signed by one of the parties hereto.


7.12 Survival. Anything contained in this Agreement to the contrary notwithstanding, the provisions of Sections 6, 7.3 and 7.9, and the other provisions of this Section 7 (to the extent necessary to effectuate the survival of Sections 6, 7.3 and 7.9), shall survive termination of this Agreement and any termination of the Executive’s employment hereunder.

 

7.13 Existing Agreements. The Executive represents to the Company that he is not subject or a party to any employment or consulting agreement, non-competition covenant or other agreement, covenant or understanding which might prohibit him from executing this Agreement or limit his ability to fulfill his responsibilities hereunder.

 

7.14 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.


IN WITNESS WHEREOF, the parties hereto have signed their names as of the day and year first above written.

 

 

 

 

NYMEX HOLDINGS, INC.

 

By:

 

/s/ Mitchell Steinhause


Name:

 

Mitchell Steinhause

Title:

 

Chairman

 

 

 

 

NEW YORK MERCANTILE EXCHANGE, INC.

 

By:

 

/s/ Mitchell Steinhause


Name:

 

Mitchell Steinhause

Title:

 

Chairman

 

 

EXECUTIVE

 

/s/ James E. Newsome


James E. Newsome

 

TOP OF DOCUMENT

 

EX-10.1 2 rrd190152_22899.htm CHANGE IN CONTROL SEVERANCE PLAN NYMEX HOLDINGS, INC.
("NYMEX" or the "Company")

CHANGE IN CONTROL SEVERANCE PLAN
(the "Plan")

EFFECTIVE AS OF JANUARY 9, 2008
("Effective Date")


INTRODUCTION

The purpose of this Plan is to enable the Company to offer Participants an incentive to remain employed with the Company or its Affiliates, encourage Participants to consider potential transactions in an objective manner and/or to provide certain protections if any such Participant's employment is terminated without Cause or for Good Reason, in each case, in connection with a Change in Control.

Accordingly, to accomplish this purpose, the Board of Directors of the Company has adopted this Plan, effective as of January 9, 2008.

Capitalized terms and phrases used herein shall have the meanings ascribed thereto in Article I.

ARTICLE I.
DEFINITIONS

1.1        "Accounting Firm" shall have the meaning set forth in Section 3.3(b).

1.2        "Accrued Obligations" shall mean, with respect to periods prior to a Participant's Termination of Employment, any earned and accrued, but unpaid, Base Pay, vacation pay, and any un-reimbursed business expenses, in each case payable in accordance with the Company's policies.

1.3        "Advance" shall have the meaning set forth in Section 3.3(c).

1.4        "Affiliate" shall mean any Subsidiary or any company, trade or business (including, without limitation, a partnership or limited liability company) which is directly or indirectly controlled 50% or more (whether by ownership of stock, assets or an equivalent ownership interest or voting interest) by the Company or any Subsidiary.

1.5        "Applicable Multiplier" shall mean the percentage determined by the Committee for such Participant's Tier, as follows:

        Tier I Participants: three times (3x).

        Tier II Participants: two times (2x).

        Tier III Participants: one time (1x).

1.6        "Base Pay" shall mean the Participant's annual base salary from the Company effective immediately prior to the occurrence of a Change in Control. Base Pay shall be determined as reflected on the Company's payroll records and shall not include bonuses, overtime pay, shift premiums, commissions, employer contributions for benefits or any other additional compensation. For purposes hereof, a Participant's Base Pay shall include any salary reduction contributions made on the Participant's behalf to any plan of the Company or an Affiliate under Section 125, 132(f) or 401(k) of the Code and compensation deferred by the Participant under any deferred compensation plan of the Company or an Affiliate.

1.7        "Board" shall mean the board of directors of the Company from time to time.

1.8        "Bonus" shall mean the average of Participant's normal annual bonus (i.e. not including any "special non-annual bonuses") for the prior three (3) years (or, if fewer, (y) the number of full fiscal years employed prior to CIC or (z) the target bonus for the year of termination if Participant was not eligible to receive a bonus during any of the prior three (3) years); provided that, notwithstanding the foregoing, during 2008 and until such time in 2009 as annual bonuses may be paid for 2008, the phrase "two (2) years" shall be substituted in each instances in which "three (3) years" appears in the first part of this Section 1.8. For the avoidance of doubt, a "special bonus" includes special one-time, non-annual payments, such as retention awards, sign-on awards and similar bonuses not received when annual bonuses are normally paid to employees of the Company.

1.9        "Capped Amount" shall have the meaning set forth in Section 3.3(a).

1.10        "Cause" shall mean, as determined by the Board and unless otherwise provided in an applicable agreement with the Company or an Affiliate: (i) engaging in any act, or failing to act, or misconduct that is injurious to the Company or its Affiliates; (ii) gross negligence or willful misconduct in connection with the performance of duties; (iii) conviction of a criminal offense (other than minor traffic offenses); (iv) fraud, embezzlement or misappropriation of funds or property of the Company or an Affiliate; (v) material breach of any term of any employment, consulting or other services, confidentiality, intellectual property or non-competition agreements, if any, between the Participant and the Company or an Affiliate; (vi) the entry of an order duly issued by any regulatory agency (including federal, state and local regulatory agencies and self-regulatory bodies) having jurisdiction over the Company or an Affiliate requiring the removal from any office held by the Participant with the Company or prohibiting the Participant from participating in the business or affairs of the Company or any Affiliate; or (vii) the revocation or threatened revocation of any of the Company's or an Affiliate's government licenses, permits or approvals, which is primarily due to the Service Provider's action or inaction and such revocation or threatened revocation would be alleviated or mitigated in any material respect by the termination of the Participant's Services.

1.11        "Change in Control" shall mean the occurrence of any of the following events: (i) any "person" as such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than the Company, any Affiliate, any trustee or other fiduciary holding securities under any employee benefit plan of the Company or an Affiliate, or any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of Common Stock of the Company), becoming the beneficial owner (as defined in Rule 13d 3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company's then outstanding securities; (ii) a merger or consolidation of the Company with any other Company (other than any Affiliate), other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; provided, however, that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person acquires more than 50% of the combined voting power of the Company's then outstanding securities shall not constitute a Change in Control; or (iii) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets, in all cases other than the sale, transfer or disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, at least 50% or more of the combined voting power of the outstanding voting securities of the Company at the time of the sale.

        A Change in Control shall not be deemed to have occurred until the closing of the applicable event specified in subsections (i) and (ii) above, or the date of stockholder approval with respect to subsection (iii) above.

1.12        "COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

1.13        "Code" shall mean the Internal Revenue Code of 1986, as amended.

1.14        "Committee" shall mean the Compensation Committee of the Board.

1.15        "Company" shall mean NYMEX Holdings, Inc. and any successors as provided in Article VII hereof.

1.16        "Confidential Information" shall mean all trade secrets, proprietary and confidential business information belonging to, used by, or in the possession of the Employer that has been obtained by the Participant during the Participant's employment with the Employer, including, but not limited to, information, knowledge or data related to business strategies, plans and financial information, mergers, acquisitions or consolidations, purchase or sale of property, leasing, pricing, sales programs or tactics, actual or past sellers, purchasers, lessees, lessors or customers, those with whom the Employer has begun negotiations for new business, costs, employee compensation, marketing and development plans, inventions and technology, whether such information is oral, written or electronically recorded or stored, except information in the public domain, information known by the Participant prior to employment with the Employer, and information received by the Participant from sources other than the Employer, without obligation of confidentiality or information the Participant is compelled to disclose pursuant to the order of a court or governmental or legal body having jurisdiction over such matter.

1.17        "Effective Date" shall mean January 9, 2008.

1.18        "Employer" shall mean, unless otherwise provided in the Plan, the Company, any Affiliate of the Company prior to the occurrence of a Change in Control, and any Affiliate of any successor to the Company in accordance with Article VII. Solely for purposes of Section 1.33, on and after the occurrence of a Change in Control, Employer shall mean the Company and any Affiliate of the successor entity as provided in Article VII hereof.

1.19        "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.

1.20        "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time.

1.21        "Excise Tax" shall have the meaning set forth in Section 3.3(a).

1.22        "Excise Tax Adjustment Payment" shall have the meaning set forth in Section 3.3(a).

1.23        "Good Reason" shall mean, as determined by the Board and unless otherwise provided in an applicable agreement with the Company or an Affiliate: (i) a material diminution in the Participant's position, duties, or responsibilities; (ii) a material diminution in the Participant's base compensation; (iii) any relocation of the Participant to a location that is more than 50 miles from the current location of the Company's executive office; or (iv) a material breach of the Participant's employment agreement, which, in each case of subsections (i) through (iv), is not cured (if curable) within 45 days by the Company after receiving written notice thereof. The Participant shall be required to provide the Company with written notice of termination for Good Reason within 45 days after the occurrence of the Good Reason event.

1.24        "IRS" shall mean the Internal Revenue Service.

1.25        "Notice Requirements" shall mean the requirements provided in Section 5.7(c) of the Plan.

1.26        "NYMEX" shall mean NYMEX Holdings, Inc. and any successors as provided in Article VII hereof.

1.27        "Parachute Payments" shall have the meaning set forth in Section 3.3(a).

1.28        "Participant" shall mean each and any key employee falling within the scope of Tier I Participants, Tier II Participants and Tier III Participants.

1.29        "Payments" shall have the meaning set forth in Section 3.3(a).

1.30        "Plan" shall mean this NYMEX Change in Control Severance Plan.

1.31        "Severance Payment" shall have the meaning set forth in Section 3.2.

1.32        "Solicitation" shall mean: (i) recruiting, soliciting or inducing any nonclerical employee or consultant of the Employer to terminate employment with, or otherwise cease or reduce such individual's relationship with, the Employer; (ii) hiring or assisting another person or entity to hire any nonclerical employee or consultant of the Employer or any person who, to the Participant's knowledge, within six months before was such a person; or (iii) soliciting or inducing any person or entity to terminate, or otherwise to cease, reduce, or diminish in any way its relationship with or prospective relationship with, the Employer.

1.33        "Subsidiary" shall mean any Company that is defined as a subsidiary Company in Section 424(f) of the Code.

1.34        "Termination of Employment" shall mean the Participant's termination of employment from the Employer. Without limiting the generality of the foregoing, any Change in Control or other similar transaction, whether by merger, consolidation, stock or asset purchase or otherwise, shall not be deemed to be a Termination of Employment for purposes of this Plan.

1.35        "Tier I Participants" shall mean the Chairman and the President of the Company.

1.36        "Tier II Participants" shall mean each officer holding the title of Executive Vice President, General Counsel, Chief Financial Officer and Chief Regulatory Officer.

1.37        "Tier III Participants" shall mean all Senior Vice Presidents and the Corporate Secretary, in each case, who are not otherwise Tier II Participants.

1.38        "Uncapped Amount" shall have the meaning set forth in Section 3.3(a).

ARTICLE II.
TERM

        This Plan shall expire on the third anniversary of the Effective Date unless, prior to such third anniversary, a Change in Control occurs or the Company executes a letter of intent to enter into a Change in Control, in which case, the term shall automatically be extended for one year thereafter. Notwithstanding the foregoing, the Committee may extend the term of the Plan at any time, in its sole discretion.

ARTICLE III.
CHANGE IN CONTROL SEVERANCE BENEFITS

3.1        Eligibility. A Participant shall receive a Severance Payment upon either:

        (a)        the termination of Participant's employment with the Company by the Employer without Cause or by the Participant for Good Reason, in each case, during the period commencing on the date of the Change in Control and ending eighteen (18) months thereafter; or

        (b)        the termination of Participant's employment with the Company by the Employer prior to a Change in Control at the request of a third party in contemplation of a Change in Control (and such Change in Control is consummated).

3.2        Severance Payments. If a Participant is eligible to receive a Severance Payment under Section 3.1 herein, then the Employer shall pay the Participant, in a single lump sum payment within ten (10) days after the date of the Participant's Termination from Employment, the following:

        (a)        An amount equal to Participant's pro rata target bonus for the year in which Participant's employment with the Company is terminated; and

        (b)        An amount equal to Participant's Applicable Multiplier multiplied by the sum of (i) Participant's base salary for the year in which Participant employment with the Company is terminated and (ii) Participant's Bonus.

        (c)        Unless specifically provided for otherwise in such agreement, any Participant who is a party to a separate agreement between such Participant and the Company or an Affiliate that provides for cash payments upon a termination for Cause or Good Reason shall be entitled to receive the greater of (i) the cash severance payments provided for in this Section 3.2 or (ii) those provided under such other agreement. For the avoidance of doubt, the foregoing applies only to cash severance payments, but does not refer to other benefits or payments upon termination under any plan, arrangement or agreement in which the Participant participates or to which he or she is a party, including without limitation, acceleration of equity awards under an equity award agreement, continuation of health insurance coverage, payment for post-termination placement consultation or similar payments or benefits, which shall continue to be available pursuant to the terms of such other plan, arrangement or agreement.

3.3        Code Sections 280G and 4999.

        (a)        If the Company determines that any amounts payable or benefits provided to a Participant under this Plan or under any other plan, arrangement or agreement between the Participant and the Company (whether or not payable under this Plan) ("Payments"), becomes subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Code, the Company shall compute the amount that would be payable to Participant if the total amounts that are payable to Participant by the Company and are considered "parachute payments" for purposes of Code Section 280G ("Parachute Payments") were limited to the maximum amount that may be paid to executive under Code Sections 280G and 4999 without imposition of the excise tax (this amount, the "Capped Amount"). The Company will also compute the amount that would be payable under the Plan without regard to whether such payments triggered any excise tax (or non-deductibility) under Code Sections 280G and 4999 limit (this amount is referred to as the "Uncapped Amount"). Notwithstanding anything in this Plan to the contrary, if the Uncapped Amount is less than 110% of the Capped Amount, then the total benefits and other amounts that are considered Parachute Payments and are payable to Participant under this Plan will be reduced to the Capped Amount, and the order of such reduction shall be determined by the Company in consultation with its outside tax advisers.

        (b)        If, after the application of paragraph (a) above, any Payments Participant would receive from the Company (or otherwise) as determined without regard to any additional payment required under this paragraph (b) would (i) constitute Parachute Payments and (ii) be subject to the Excise Tax and/or any interest or penalties payable with respect thereto, then the Company shall make an additional payment (an "Excise Tax Adjustment Payment") in an amount such that, after payment by Participant of (x) all Excise Taxes on the Payments and any interest or penalties payable with respect thereto, and (y) all income and employment taxes imposed on the Excise Tax Adjustment Payment (computed at the highest applicable marginal rates and including any interest or penalties imposed with respect to such taxes) and any interest or penalties imposed with respect thereto, Participant retains an amount equal to the Payments. In the event that, as the result of a position taken by the Company or the IRS, Participant is required to make a payment of any Excise Tax and/or any interest or penalties payable with respect thereto, the determination of the amount of the Excise Tax Adjustment Payment shall be made by a reputable accounting firm selected by the Company (the "Accounting Firm"), which firm shall provide detailed supporting calculations to Participant and to the Company. Subject to the provisions of Section 3.3(c) below, the amount of the Excise Tax Adjustment Payment shall be promptly paid to Participant. The determination of the Excise Tax Adjustment Payment by the Accounting Firm shall be binding upon Participant and the Company, and the Company shall bear all of the fees and expenses of the Accounting Firm for, or related to, such determination.

        (c)        Participant shall notify the Company in writing of any correspondence Participant receives from the IRS (and Participant shall promptly provide the Company with a copy of such correspondence) which could require an Excise Tax Adjustment Payment. Participant shall not pay any Excise Tax in connection with any such correspondence prior to the expiration of the thirty (30) day period following the date on which Participant provides a copy of such correspondence to the Company (or such shorter period ending on the date that any payment of such Excise Tax would be due). If the Company notifies Participant in writing prior to the expiration of such period that it desires to contest the IRS' position that Participant owes Excise Tax, Participant shall (i) promptly provide the Company with any information reasonably requested thereby, (ii) take such action in connection with contesting the IRS' position as the Company shall reasonably request of Participant in writing from time to time, including, without limitation, accepting legal representation with respect to such contest by an attorney reasonably selected by the Company, and pay the amount determined to be payable by the IRS with funds advanced to Participant for such purpose by the Company (an "Advance"), and (iii) cooperate with the Company in good faith; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such opposition and shall indemnify and hold Participant harmless, on an after-tax basis, for any Excise Tax and/or income tax (including interest and penalties with respect to either of them) imposed as a result of such opposition and payment of costs and expenses.

        (d)        If, after Participant receives an Advance from the Company pursuant to Section 3.3(c), Participant becomes entitled to receive any refund with respect to such Excise Tax payment, Participant shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after payment by Participant of any taxes applicable thereto). If, after Participant receives an Advance from the Company pursuant to Section 3.3(c), Participant receives written notification from the IRS that it has determined that Participant shall not be entitled to any refund with respect to such Excise Tax payment, Participant shall immediately provide the Company with a copy of such notification, and, if the Company does not notify Participant in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days following Participant's receipt of such notification, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of any Excise Tax Adjustment Payment required to be paid.

        (e)        The terms and payments contemplated in this Section 3.3 shall specifically supersede and replace any provision in any agreement between a Participant and the Company, entered into prior to the Effective Date, that is inconsistent with the terms provided herein, such that, the only cut-back applicable as a result of the application of Code Section 280G (other than as described herein) shall be deemed to be null and void and of no further effect in any such prior agreement.

3.4        Restrictive Covenants. The Participant's right to the payments and benefits provided under this Article III is subject to this Section.

        (a)        At all times the Participant shall not use for the Participant's own benefit or disclose Confidential Information.

        (b)        At all times the Participant shall not breach the terms of any confidentiality agreement (or similar agreement) entered into by the Participant in connection with an actual or contemplated Change in Control.

        (c)        While employed by the Employer and for twelve months following the later of: (i) the Participant's Termination of Employment without Cause or by the Participant for Good Reason; or (ii) the date the Participant receives any payment under this Article III, the Participant shall not engage in Solicitation.

        (d)        Notwithstanding anything else to the contrary herein, to the extent permitted by applicable law, in the event of any violation by the Participant of this Section 3.4, the Company shall immediately have no obligation thereafter to make any payments or provide the Participant with any benefits, and upon a showing of adequate proof of a breach by the Participant of this Section 3.4, the Company, in its sole discretion, may require the Participant to promptly repay to the Company any payments the Participant received pursuant to Article III prior to such breach.

3.5        Release Required. All amounts and benefits payable pursuant to this Plan (other than Accrued Obligations) shall be payable only if the Participant delivers to the Company (and does not revoke) a release of all claims of any kind whatsoever that the Participant has or may have against the Employer and its (and their) officers, directors and employees known or unknown as of the date of the Participant's Termination of Employment (other than claims to payments specifically provided hereunder, claims under COBRA, claims to vested accrued benefits under the Employer's tax-qualified retirement plans or rights of indemnification or contribution to which the Participant was entitled under the Employer's Bylaws or the Employer's Certificate of Incorporation) occurring up to the release date in such form as reasonably requested by the Company.

3.6        No Duty to Mitigate/Set-off. No Participant entitled to receive Payments hereunder shall be required to seek other employment or to attempt in any way to reduce any amounts payable to the Participant by the Employer pursuant to this Plan and there shall be no offset against any amounts due the Participant under this Plan on account of any remuneration attributable to any subsequent employment that the Participant may obtain or otherwise. The amounts payable hereunder shall not be subject to setoff, counterclaim, recoupment, defense or other right which the Employer may have against the Participant. In the event of the Participant's breach of any provision hereunder, (other than as it applies to a release of claims under the Age Discrimination in Employment Act, as amended), the Company shall be entitled to recover any payments previously made to the Participant hereunder.

3.7        Cooperation. By accepting payments or benefits under this Plan, subject to the Participant's other commitments, the Participant shall be reasonably available to cooperate with the Employer and provide information as to matters which the Participant was personally involved, or has information on, during the Participant's employment with the Employer and which are or become the subject of litigation or other dispute.

ARTICLE IV.
FUNDING

        This Plan shall be funded out of the general assets of the Company as and when benefits are payable under this Plan. All Participants shall be solely general creditors of the Company. If the Company decides in its sole discretion to establish any advance accrued reserve on its books against the future expense of benefits payable hereunder, or if the Company decides in its sole discretion to fund a trust under this Plan, such reserve or trust shall not under any circumstances be deemed to be an asset of this Plan.

ARTICLE V.
ADMINISTRATION OF THE PLAN

5.1        Plan Administrator. The general administration of the Plan on behalf of the Company (as plan administrator under Section 3(16)(A) of ERISA) shall be placed with the Committee.

5.2        Reimbursement of Expenses of Plan Committee. The Company shall pay or reimburse the members of the Committee for all reasonable expenses incurred in connection with their duties hereunder.

5.3        Action by the Plan Committee. Decisions of the Committee shall be made by a majority of its members attending a meeting at which a quorum is present (which meeting may be held telephonically), or by written action in accordance with applicable law. Subject to the terms of this Plan and provided that the Committee acts in good faith, the Committee shall have the authority to determine a Participant's participation and benefits under the Plan and to interpret and construe the provisions of the Plan.

5.4        Delegation of Authority. The Committee, in its sole discretion, may delegate all or any portion of its powers and responsibilities under the Plan to any employee of the Employer by formal resolution filed with and accepted by the Board. Any such delegation shall not be effective until it is accepted by the Board and the persons designated and may be rescinded at any time by written notice from the Committee to the person to whom the delegation is made.

5.5        Retention of Professional Assistance. The Committee may employ such legal counsel, accountants and other persons as may be required in carrying out its work in connection with the Plan.

5.6        Accounts and Records. The Committee shall maintain such accounts and records regarding the fiscal and other transactions of the Plan and such other data as may be required to carry out its functions under the Plan and to comply with all applicable laws.

5.7        Claims/Disputes Procedure.

        (a)        Any claim by a Participant or beneficiary ("Claimant") with respect to eligibility, participation, contributions, benefits or other aspects of the operation of the Plan shall be made in writing to the Committee. The Committee shall provide the Claimant with the necessary forms and make all determinations as to the right of any person to a disputed benefit. If a Claimant is denied benefits under the Plan, the Committee or its designee shall notify the Claimant in writing of the denial of the claim within 90 days (such period may be extended to 180 days) after the Plan receives the claim, provided that in the event of special circumstances such period may be extended.

        (b)        If the initial 90 day period is extended, the Committee or its designee shall, within 90 days of receipt of the claim, notify the Claimant in writing of such extension. The written notice of extension will indicate the special circumstances requiring the extension of time and provide the date by which the Committee expects to make a determination with respect to the claim. If the extension is required due to the Claimant's failure to submit information necessary to decide the claim, the period for making the determination will be tolled from the date on which the extension notice is sent to the Claimant until the earlier of: (i) the date on which the Claimant responds to the Plan's request for information; or (ii) expiration of the 45 day period commencing on the date that the Claimant is notified that the requested additional information must be provided. If notice of the denial of a claim is not furnished within the required time period described herein, the claim shall be deemed denied as of the last day of such period.

        (c)        If the claim is wholly or partially denied, the notice to the Claimant shall set forth:

                i.        the specific reason or reasons for the denial;
                ii.        specific reference to pertinent Plan provisions upon which the denial is based;
                iii.        a description of any additional material or information necessary for the Claimant to perfect the claim and an explanation of why such material or information is necessary;
                iv.        appropriate information as to the steps to be taken and the applicable time limits if the Claimant wishes to submit the adverse determination for review; and
                v.        a statement of the Claimant's right to bring a civil action under Section 502(a) of ERISA following an adverse determination on review.

        (d)        If the claim has been denied, the Claimant may submit the claim for review. Any request for review of a claim must be made in writing to the Committee no later than 60 days after the Claimant receives notification of denial or, if no notification was provided, the date the claim is deemed denied. The claim will then be reviewed by the Committee. The Claimant or his duly authorized representative may:

                i.        upon request and free of charge, be provided with access to, and copies of, relevant documents, records, and other information relevant to the Claimant's claim; and
                ii.        submit written comments, documents, records, and other information relating to the claim. The review of the claim determination shall take into account all comments, documents, records, and other information submitted by the Claimant relating to the claim, without regard to whether such information was submitted or considered in the initial claim determination.

        (e)        The decision of the Committee shall be made within 60 days (such period may be extended to 120 days) after receipt of the Claimant's request for review, unless special circumstances require an extension.

        (f)        If the initial 60 day period is extended, the Committee or its designee shall, within 60 days of receipt of the claim, notify the Claimant in writing of such extension. The written notice of extension will indicate the special circumstances requiring the extension of time and provide the date by which the Committee expects to make a determination with respect to the claim. If the extension is required due to the Claimant's failure to submit information necessary to decide the claim, the period for making the determination will be tolled from the date on which the extension notice is sent to the Claimant until the earlier of: (i) the date on which the Claimant responds to the Plan's request for information; or (ii) expiration of the 45 day period commencing on the date that the Claimant is notified that the requested additional information must be provided. If notice of the denial of a claim is not furnished within the required time period described herein, the claim shall be deemed denied as of the last day of such period.

        (g)        If an extension of time is required, the Claimant shall be notified in writing of such extension. The written notice of extension will indicate the special circumstances requiring the extension of time and the date by which the Committee expects to make a determination with respect to the claim. If the extension is required due to the Claimant's failure to submit information necessary to decide the claim on review, the period for making the determination will be tolled from the date on which the extension notice is sent to the Claimant until the earlier of: (i) the date on which the Claimant responds to the Plan's request for information; or (ii) expiration of the 45-day period commencing on the date that the Claimant is notified that the requested additional information must be provided. In any event, a decision shall be rendered not later than 120 days after receipt of the request for review. If notice of the decision upon review is not furnished within the required time period described herein, the claim on review shall be deemed denied as of the last day of such period.

        (h)        The Committee's decision on the Claimant's claim for review will be communicated to the Claimant in writing. If the claim on review is denied, the notice to the Claimant shall provide a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claim, and also set forth the Notice Requirements (other than subsection (iv)).

        (i)        The claims procedures set forth in this section are intended to comply with U.S. Department of Labor Regulation Section 2560.503-1 and should be construed in accordance with such regulation. In no event shall it be interpreted as expanding the rights of Claimants beyond what is required by U.S. Dept. of Labor Section 2560.503-1.

5.8        Indemnification. The Committee, its members and any person designated pursuant to Section 5.4 above shall not be liable for any action or determination made in good faith with respect to the Plan. The Company shall, to the extent permitted by law, by the purchase of insurance or otherwise, indemnify and hold harmless each member of the Committee and each director, officer and employee of the Company for liabilities or expenses they and each of them incur in carrying out their respective duties under this Plan, other than for any liabilities or expenses arising out of such individual's willful misconduct or fraud.

ARTICLE VI.
AMENDMENT AND TERMINATION

        The Company reserves the right to amend or terminate, in whole or in part, any or all of the provisions of this Plan at any time. Notwithstanding the foregoing, upon and following the occurrence of a Change in Control, the Plan may not be amended or terminated in any way that would adversely affect the rights of the Participants.

ARTICLE VII.
SUCCESSORS

        For purposes of this Plan, the Company shall include any and all successors and assignees, whether direct or indirect, by purchase, merger, consolidation or otherwise, to all or substantially all the business or assets of the Company and such successors and assignees shall perform the Company's obligations under this Plan, in the same manner and to the same extent that the Company would be required to perform if no such succession or assignment had taken place. In such event, the term "Company", as used in this Plan, shall mean the Company, as hereinbefore defined and any successor or assignee to the business or assets which by reason hereof becomes bound by the terms and provisions of this Plan.

ARTICLE VIII.
MISCELLANEOUS

8.1        Rights of Participants. Nothing herein contained shall be held or construed to create any liability or obligation upon the Employer to retain any Participant in its service. All Participants shall remain subject to discharge or discipline to the same extent as if this Plan had not been put into effect.

8.2        Governing Law. To the extent legally required, the Code and ERISA shall govern this Plan and, if any provision hereof is in violation of any applicable requirement thereof, the Company reserves the right to retroactively amend this Plan to comply therewith. To the extent not governed by the Code and ERISA, this Plan shall be governed by the laws of the State of New York (without regard to its conflicts of law principles).

8.3        Withholding. The Employer shall have the right to make such provisions as it deems necessary or appropriate to satisfy any obligations it may have to withhold federal, state or local income or other taxes incurred by reason of payments pursuant to this Plan.

8.4        Blue Pencil. If, at any time, any of the provisions of this Plan shall be determined to be invalid or unenforceable under any applicable law for any reason, such determination shall be applicable only in the jurisdiction in which such determination is made, and this letter agreement shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and this Plan, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein.

8.5        Assignment and Alienation. The benefits payable to the Participant under the Plan shall not be subject to alienation, transfer, assignment, garnishment, execution or levy of any kind and any attempt to cause any benefits to be so subjected shall not be recognized.

8.6        ERISA Plan. The Plan is intended to be a "top hat" welfare benefit plan within the meaning of U.S. Department of Labor Regulation Section 2520.104-24.

8.7        Code Section 409A. Although the Company makes no guarantee with respect to the tax treatment of payments hereunder and shall not be responsible in any event with regard to non-compliance with Code Section 409A, the Plan is intended to comply with the applicable requirements of Code Section 409A and shall be limited, construed and interpreted in accordance with such intent. Accordingly, the Company reserves the right to amend the provisions of the Plan at any time in order to avoid the imposition of an excise tax under Code Section 409A on any Payments to be made hereunder. In no event whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest or penalties that may be imposed on a Participant by Section 409A of the Code or any damages for failing to comply with Section 409A of the Code other than for withholding obligations or other obligations applicable to employers, if any, under Section 409A of the Code.

8.8        Six-Month Delay. In the event that, at the time of a Participant's termination of employment, the Participant is a "Specified Employee" (as such term is defined in Code Section 409A), then any Separation Payment(s) payable to such Participant in a lump sum upon termination of employment shall not be paid until the date that is six (6) months after the Participant's termination of employment (the "Delay Period") and, to the extent such amounts would have otherwise been payable during the Delay Period, paid to the Participant in a lump sum as soon as administratively feasible following the expiration of the Delay Period.

8.9        Entire Agreement. This Plan sets forth the entire understanding of the Employer and supersedes all existing severance and change in control plans, agreements and understandings (whether oral or written) between the Employer and the Participants.

8.10        Notices. All notices and other communications required or permitted under this Plan or necessary or convenient in connection herewith (including, without limitation, any notice regarding a Termination of Employment by the Employer without Cause or by the Participant for Good Reason) shall be in writing and shall be deemed to have been given when hand delivered or mailed by registered or certified mail to the last known address of the Company or the Participant, as the case may be, reflected upon Company records. Notices to the Company shall be addressed to:

        NYMEX Holdings, Inc.
        World Financial Center
        One North End Avenue
        New York, NY 10282-1101
        Attn: General Counsel

Notwithstanding the foregoing, to the extent the Plan is assumed by any successor to the Company, any notice to such successor under the Plan shall be sent to the address designated by the successor, in writing, to the Participant.