EXHIBIT 10.2
AMERITRADE HOLDING CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") between
AMERITRADE HOLDING CORPORATION, a Delaware corporation (the "Company") and
Xxxxxxx Xxxxxxxx (the "Executive"), is made effective February 28, 2003 (the
"Effective Date").
Recitals
The Executive desires to be employed as a member of the Executive
Management Team of the Company and Company desires to employ the Executive.
The Company and the Executive desire to set forth in this Agreement,
the terms, conditions and obligations of the parties with respect to such
employment and this Agreement is intended by the parties to supersede all
previous agreements and understandings, whether written or oral, concerning
employment with the Company and with any subsidiary of the Company.
Accordingly, the Company and the Executive agree as follows:
1. EMPLOYMENT. The Company will employ the Executive as an Executive
Vice President and a member of the Executive Management Team or a comparable
position as described in Section 6(e)(ii) below, upon the terms and conditions
set forth in this Agreement. The Executive's primary office shall be located in
Jersey City, New Jersey. The Executive will perform such duties and
responsibilities for the Company which are commensurate with his position
subject to the reasonable direction of the Chief Executive Officer (the "CEO")
or the Chairman of the Board of Directors (the "Chairman").
2. TERM. Subject to the provisions set forth in Section 6 below, the
term of this Agreement (the "Term of Agreement") will be the period beginning on
the Effective Date and ending on the second anniversary of the Effective Date,
unless earlier terminated in accordance with Section 6 below. Notwithstanding
the foregoing, upon a "Change of Control" (as defined in Section 7 below), the
Term of Agreement will not change, unless earlier terminated in accordance with
Section 6 below.
3. COMPENSATION. During the Term, the Executive will be compensated for
his services to the Company in accordance with the following:
(a) Base Salary. The Company will pay to the Executive an annual base
salary of $350,000, payable in accordance with the Company's policies.
The Executive's annual base salary will be reviewed by the Company for
possible increase (but not decrease) at least once in each calendar
year through the Term of this Agreement.
(b) Annual Incentive. The Executive will be entitled to participate in the
Company's Management Incentive Plan (or any successor short-term
incentive plan or program) (the "MIP Plan") for the Company's fiscal
year 2003 (on a prorated basis from Effective Date through fiscal year
end) and subsequent fiscal years during the Term in accordance with the
terms and conditions of the MIP Plan (the "Bonus"). The annual
Bonus received by the Executive for fiscal year 2003 is guaranteed to
be no less than $350,000 pro-rated for period of service during the
fiscal year, and the annual Bonus received by the Executive for the
remainder of Term of Agreement following fiscal year 2003 is guaranteed
to equal or exceed the amount of the Executive's annual base salary as
of the end of the fiscal year for which such Bonus is paid. To ensure
that Executive will receive his Bonus guarantee over the Term, Company
shall pay Executive 5/12ths of Executive's annual base salary on or
about March 1, 2005. The Bonus to be paid Executive for fiscal year
2005 will therefore be reduced, but not below zero, by the payment made
on or about March 1, 2005. The Executive will also be eligible to
participate in any upside potential on his annual incentive, based upon
outstanding performance, as determined by the Compensation Committee of
the Board of Directors of the Company (the "Compensation Committee") in
its discretion and based upon performance criteria determined for each
fiscal year by the Compensation Committee in its sole discretion. Bonus
payments under this section shall be made on the same date as the other
executives in the MIP Plan.
(c) Long-Term Incentive Plan and Options. Beginning on the
Effective Date, the Executive will be entitled to participate in the
Company's 1996 Long-Term Incentive Plan (or any successor long-term
incentive plan or program) (the "LTIP"). Any awards made under the
LTIP will be made at the sole discretion of the administrator of the
LTIP, or the administrator's designee, and will be subject to the terms
and conditions of the LTIP and the applicable award agreement. In
addition, the Executive shall be granted 500,000 options on his first
day of employment with a strike price equal to the closing price of the
Company's publicly traded stock on that date (the "Kick start
Options"). The Kick-start Options shall vest at a rate of 250,000 on
each anniversary of the grant date, until fully vested. Such Kick-start
Options shall be governed by the terms of the separate Non-Qualified
Stock Option Agreement.
(d) Deferred Compensation Program. Beginning on the Effective
Date, the Executive will be entitled to participate in the Company's
Executive Deferred Compensation Program (or any successor deferred
compensation program) (the "Deferred Compensation Program") in
accordance with the terms and conditions of the Deferred Compensation
Program. One purpose of the Deferred Compensation Program is to provide
a vehicle for the Executive to meet his Equity Ownership Guideline
Requirements ("EOG") as determined by the Compensation Committee. The
Executive's EOG shall not exceed $350,000, to be fulfilled by the
Executive over 4 years at the rate of 25% each year, in accordance with
the provisions of the EOG. Further, Executive shall have 15 months from
Effective Date to meet the first 25% requirement under the EOG.
(e) Benefits and Perquisites. The Executive will also receive
all other benefits and perquisites (the "Benefits") which are made
available generally to other senior executives of the Company. All such
Benefits will be provided in such amounts as may be determined from
time to time by the Company in its discretion and pursuant to the terms
of the plan documents governing such Benefits.
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4. NON-COMPETITION, NON-SOLICITATION AND NON-HIRE PROVISIONS. The
Executive agrees that:
(a) During the Term and for a period of 12 months thereafter
(collectively, the "Restricted Period"), the Executive will not
(without the written consent of the Chief Executive Officer or the
Chairman of the Board) engage or participate in any business within the
United States (as an owner, partner, stockholder, holder of any other
equity interest, or financially as an investor or lender, or in any
capacity calling for the rendition of personal services or acts of
management, operation or control) which is engaged in any business
competitive with the Company ("Competitive Business") conducted by the
Company during the 12 month period prior to the Date of Termination (as
defined in Section 6) or, if the Executive has been employed for less
than a 12 month period, the period in which the Executive was employed
by the Company. For purposes of this Agreement, the term "Competitive
Business" is defined as (i) an online brokerage business, or (ii) a
business function, product or service for which the Executive was
responsible or developed during his employment with the Company during
the Term. Notwithstanding the foregoing, the Executive may own
securities of a Competitive Business so long as the securities of such
corporation or other entity are listed on a national securities
exchange or on the Nasdaq National Market and the securities owned
directly or indirectly by the Executive do not represent more than one
percent of the outstanding securities of such corporation or other
entity;
(b) During the Restricted Period neither the Executive, nor
any business in which the Executive may exercise control, will directly
or indirectly (i) induce any customer or vendor of the Company or of
corporations or businesses which directly or indirectly are controlled
by the Company (collectively, the "Affiliates") to patronize any
Competitive Business, (ii) canvass, solicit or accept any business from
any customer of the Company or any of its Affiliates which business is
of a type that is similar to the business received by the Company or
Affiliate from the customer, (iii) request or advise any customer or
vendor of the Company or any of its Affiliates to withdraw, curtail or
cancel such customer's or vendor's business with the Company or any of
its Affiliates; or (iv) compete with the Company or any of its
Affiliates in merging with or acquiring any other company or business
(whether by a purchase of stock or other equity interests, or a
purchase of assets or otherwise) which is a Competitive Business;
(c) During the Restricted Period, neither the Executive nor
any business in which the Executive may engage or participate in will
(i) hire, solicit or attempt to hire any employee or contractor of the
Company or any of its Affiliates or (ii) encourage any employee or
contractor of the Company or any of its Affiliates to terminate
employment or contractual arrangements. For purposes of this Agreement,
"employee" includes current employees as well as anyone employed by the
Company or any of its Affiliates within the prior six months from the
Executive's Date of Termination (as defined in Section 6), provided,
however, that this provision shall not preclude any business in which
the Executive may engage or participate in from hiring any such
employee who responds to a public announcement or advertisement placed
by the business as long as Executive does not exercise any control over
the business; and
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(d) In the event that any of the provisions of this Section 4
should ever be deemed to exceed the time, geographic or occupational
limitations permitted by applicable laws, then such provisions will and
are hereby reformed to the maximum time, geographic or occupational
limitations permitted by applicable law.
5. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY.
(a) Except as may be required by law, or except to the extent
required to perform the Executive's duties and responsibilities
hereunder, the Executive will keep secret and confidential indefinitely
all non-public confidential information (including, without limitation,
information regarding cost of new accounts, activity rates of different
market niche customers, advertising results, technology (hardware and
software), architecture, discoveries, processes, algorithms, maskworks,
strategies, intellectual properties, customer lists and other customer
information) concerning any of the Company and its Affiliates which was
acquired by or disclosed to the Executive during the course of the
Executive's employment with the Company ("Confidential Information")
and not use in any manner or disclose the same, either directly or
indirectly, to any other person, firm or business entity.
(b) At the end of the Term or at the Company's earlier
request, the Executive will promptly return to the Company any and all
records, documents, physical property, information, computer disks,
drives or other materials relative to the business of any of the
Company and its Affiliates obtained by the Executive during course of
employment with the Company and not keep any copies thereof.
(c) The Executive acknowledges and agrees that all right,
title and interest in inventions, discoveries, improvements, trade
secrets, developments, processes and procedures made by the Executive,
in whole or in part, or conceived by the Executive either alone or with
others, during the course of employment which are developed or
perfected after the Executive's termination of employment, are owned by
the Company ("Company IP"). The Executive assigns any and all right,
title and interest he may have to Company IP to the Company and will
promptly assist the Company or its designee, at the Company's expense,
to obtain patents, trademarks, copyrights and service marks concerning
Company IP made by the Executive and the Executive will promptly
execute all reasonable documents prepared by the Company or its
designee and take all other reasonable actions which are necessary or
appropriate to secure to the Company and its Affiliates the benefits of
Company IP. Such patents, trademarks, copyrights and service marks will
at all times be the property of the Company and its Affiliates. The
Executive promptly will keep the Company informed of, and promptly will
execute such assignments prepared by the Company or its designee as may
be necessary to transfer to the Company or its Affiliates the benefits
of, any Company IP.
(d) To the extent that any court or agency seeks to require
the Executive to disclose Confidential Information, the Executive
promptly will inform the Company and take reasonable steps to endeavor
to prevent the disclosure of Confidential Information until the Company
has been informed of such requested disclosure, and the Company has an
opportunity to respond to such court or agency. To the extent the
Executive obtains
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information on behalf of the Company or any of its Affiliates that may
be subject to attorney-client privilege as to the Company's attorneys,
the Executive will promptly inform the Company and take reasonable
steps to endeavor to maintain the confidentiality of such information
and to preserve such privilege.
(e) Confidential Information does not include information
already in the public domain or information which has been released to
the public by the Company. Nothing in this Section 5 shall be construed
so as to prevent the Executive from using, in connection with his
employment for himself or an employer other than the Company, knowledge
which was acquired by him during the course of his employment with the
Company and which is generally known to persons of his experience in
other companies in the same industry. Subject to Section 5(d),
Executive will be permitted to disclose Confidential Information if
required by a subpoena or court or administrative order.
6. TERMINATION.
(a) Date of Termination. For purposes of this Agreement, "Date
of Termination" is defined as (i) if the Executive's employment is
terminated by reason of death or disability, the date of such death or
disability; (ii) if the Executive's employment is terminated by the
Executive for reasons other than Good Reason (as defined below), the
date specified in the notice of termination, (iii) if the Executive's
employment is terminated by the Executive for Good Reason (as defined
below), the date of the Company's receipt of the notice of termination
and (iv) if the Executive's employment is terminated by the Company,
the date of the Executive's receipt of the notice of termination or any
later date specified therein.
(b) Payments upon Termination. The Company will pay to the
Executive in a lump sum in cash within 30 days following the Date of
Termination (i) the unpaid portion of the Executive's then current
annual base salary through the Date of Termination, (ii) all accrued
but unused vacation and personal days through the Date of Termination
in accordance with company policy, and (iii) the Bonus under the MIP
Plan, for the fiscal year in which the Date of Termination occurs, the
payments in (iii) being prorated for the portion of the Company's
fiscal year completed on the Date of Termination; provided, however,
that if the Executive's employment is terminated by the Company for
reason of Cause (as defined below), the Executive will not be entitled
to the payments in (iii) above. All other Benefits will be paid and
continued only to the extent the terms thereof provide for the payment
or continuation following the Date of Termination. The vesting and
exercisability of the Executive's outstanding stock awards will be
treated in accordance with the terms of their respective grants or
awards. Nothing in this paragraph, however, releases or diminishes any
vested monies or other vested benefits to which the Executive is
entitled, under or pursuant to any qualified savings or retirement plan
of the Company.
(c) Death or Disability. If the Executive becomes physically
or mentally disabled and unable to perform the essential functions of
his employment (in the reasonable opinion of the Board of Directors of
the Company), even with reasonable accommodation, for more than six (6)
consecutive months, or if the Executive should die
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while an employee of the Company, the Executive's employment with the
Company will immediately terminate.
(d) Voluntary Resignation. The Executive may terminate
employment with the Company for reasons other than those described in
Section 6(e) by delivering written notice to the Company at least 30
days prior to such termination of employment.
(e) Termination by the Company for Reasons Other than Cause or
Voluntary Resignation by the Executive for Good Reason. In the event
the Company elects to terminate the Executive's employment for any
reason other than disability or those specified in Section 6(g), it
will provide written notice of such termination to the Executive, which
notice will include the date on which the Executive's employment will
terminate. The Executive may also terminate employment with the Company
for Good Reason by delivering written notice to the Company within 90
days of the occurrence of an event qualifying as Good Reason, but in
any event prior to the end of the Term. "Good Reason" is defined as one
of the following events that occurs without the prior written consent
of the Executive:
(i) a material violation by the Company of the terms of
this Agreement which continues for 30 days following
receipt of notice from the Executive specifying such
violation;
(ii) a material reduction in the Executive's duties or
responsibilities, excluding for this purpose (1) an
isolated, unsubstantial or inadvertent action not
taken in bad faith and promptly remedied by the
Company after receipt of notice given by the
Executive; (2) any reorganization of the Executive
Management Team by the Company's CEO which results in
a change in the Executive's position with no decrease
in base salary and guaranteed bonus during the Term
for the Executive, and no change in participation as
a member of the Executive Management Team;
(iii) a reduction in the Executive's then current annual
base salary, or Bonus during the Term of Agreement;
(iv) any relocation of Executive's base office in Jersey
City, New Jersey to an office that is more than 50
miles from the Executive's place of residence as of
the Effective Date;
(v) failure of any successor to the company (whether
direct or indirect and whether by merger,
acquisition, consolidation, or otherwise) to assume
in a writing delivered to Executive upon the assignee
becoming such, the obligations of the Company
hereunder;
Subject to the Executive's compliance with the non-competition,
non-solicitation, non-hire and confidentiality and intellectual
property provisions of this Agreement and the execution and delivery by
the Executive to the Company of the release described in
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Section 13 hereof, the Company will provide the Executive with
severance compensation and benefits (in addition to the payments
described in Section 6(b)) as follows:
(vi) the Executive will continue to receive his then
current annual base salary (or, if greater, the
annual base salary in effect 90 days prior to the
Date of Termination, but in no event less than
$350,000), payable in a lump sum within 30 days
following such termination of employment in lieu of
payment on the Company's regularly scheduled paydays,
for a period equal to the greater of (A) 12 months or
(B) the period from the Date of Termination through
the end of the Term (such period of payment to be
referred to as the "Severance Period");
(vii) the Executive will receive an amount equal to the
bonus he is entitled to receive under the MIP Plan,
as provided for in 3(b), for the Severance Period,
payable in a lump sum within 30 days following such
termination of employment in lieu of payment at such
time as bonuses are generally payable for other
participants under the MIP Plan;
(viii) during the Severance Period, if the Executive or any
of his dependents is eligible for and elects COBRA
continuation coverage (as described in Section 4980B
of the Internal Revenue Code of 1986, as amended (the
"Code")) under any Company group medical or dental
plan, the Executive will not be charged any premiums
for such coverage, all such premiums to be paid by
the Company. At the conclusion of the Severance
Period, the Executive may be eligible to continue
COBRA coverage as provided by law, but he will then
be responsible for the full COBRA premium.
The foregoing will be in lieu of all salary, bonuses or incentive or
performance based compensation for the period following the date of
termination, and any severance benefits to which the Executive may
otherwise be entitled. If the Executive dies during the Severance
Period, any remaining severance payments will be made to the
Executive's surviving spouse or, if none, to his estate.
(f) Additional Restricted Period.
At the end of the Term of Agreement, the Executive will only be
required to comply with the Non-competition, Non-Solicitation and
Non-Hire provisions set forth in Section 4 above for the period
indicated by the Company commencing on the day after the end of the
Term of Agreement and ending on the date specified by the Company,
which shall not be later than the first anniversary of expiration of
the Term of Agreement, which date the Executive hereby agrees to in
consideration of the Non-Competition Payments provided below
("Additional Restricted Period"). The Company will provide the
Executive with payments (the "Non-Competition Payments") for the
duration of the
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Additional Restricted Period equal to his then current base salary (or,
if greater, the annual base salary in effect 90 days prior to the Date
of Termination, but in no event less than $350,000), payable pro-rata
over the course of the Additional Restricted Period on regularly
scheduled paydays. The Non-Competition Payments shall be reduced by any
payments due to the Executive under any other severance provision
described in Section 6 hereof and Executive agrees to execute and
deliver the release described in Section 13 below.
(g) Termination by the Company for Cause. The Company will
have a right, upon delivery of notice for Termination for Cause, to
terminate the Executive's employment under this Agreement prior to the
expiration of the Term of Agreement for reason of Cause. "Cause" means:
(i) the willful failure by the Executive to substantially
perform his duties under this Agreement, other than
due to illness, injury or disability, which failure
continues for ten days following receipt of notice
specifying such failure;
(ii) the willful engaging by the Executive in conduct
which, in the reasonable judgement of the Board, is
materially injurious to the Company, monetarily or
otherwise, which conduct continues for ten days
following receipt of notice specifying such conduct;
(iii) misconduct involving serious moral turpitude to the
extent that in the reasonable judgment of the Board,
the Executive's credibility or reputation no longer
conforms to the standard of the Company's executives;
or
(iv) the material violation of the provisions of Section 4
or Section 5 of this Agreement.
Notice of Termination for Cause. A Notice of Termination for
Cause shall mean a written notice that shall indicate the
specific termination provision above relied upon and shall set
forth in reasonable detail the facts and circumstances, which
provide for a basis for Termination for Cause. Notwithstanding
anything to the contrary contained in this Agreement, in the
event that a period of notice of termination is required to be
given by either party, the Company may, in its sole discretion
and subject to Executive's right to cure provided in
subsection (i) above, choose to have the notice effective
immediately, provided the Company will be obligated to provide
the Executive with the compensation and benefits to which he
is entitled, as an employee, for the entire notice period.
7. CHANGE OF CONTROL.
(a) For the purpose of this Agreement, a "Change of Control"
means the occurrence of an event described in subparagraph (i), (ii) or
(iii) below:
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(i) the completion of a plan of complete liquidation of
the Company which has been approved by the Company's
shareholders and/or Board, as applicable;
(ii) the sale or disposition by the Company of all or
substantially all of the assets of the Company (or
any transaction having a similar effect); or
(iii) the consummation of a merger, acquisition, or
consolidation of the Company with any other
corporation or entity other than (1) a merger,
acquisition 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, acquisition or consolidation or (2) a merger,
acquisition or consolidation effected to implement a
recapitalization of the Company (or similar
transaction).
(b) Subject to the Executive's compliance with Sections 4 and
5 and subject to the Executive's execution of the General Release and
Cooperation Agreement described in Section 13, if at any time following
a Change of Control, the Executive's employment is terminated by the
Company without Cause or is terminated by the Executive for Good
Reason, the amount due to the Executive in Sections 6(e)(vii) and
6(e)(viii) will be paid in a lump sum within 30 days following such
termination of employment in lieu of payment at such times described in
Sections 6(e)(vii) and 6(e)(viii). In addition, upon a Change of
Control, whether or not a termination occurs, all options then held by
the Executive shall be immediately vested. Such options shall be
exercisable in accordance with the terms of the Executive's
Non-Qualified Stock Option Agreement.
8. EXCISE TAXES. Anything in this Agreement to the contrary
notwithstanding, if any payment or benefit to which the Executive is entitled to
from the Company (the "Payments," which include the vesting of stock awards or
other benefits or property) is more likely than not to be subject to the tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any
successor provision to that section), the Payments shall be reduced to the
extent required to avoid application of such tax. The Executive will be entitled
to select the order in which Payments are to be reduced in accordance with the
preceding sentence. Determination of whether Payments would result in the
application of the tax imposed under Section 4999, and the amount of reduction
that is necessary so that no such tax is applied, shall be made at the Company's
expense, by the independent accounting firm employed by the Company immediately
prior to the occurrence of any Change of Control of the Company which will
result in the imposition of such tax.
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9. EFFECT OF BREACH OF NON-COMPETITION, NON-SOLICITATION, NON-HIRE OR
CONFIDENTIALITY AND INTELLECTUAL PROPERTY PROVISIONS. The Executive acknowledges
that the Company would be irreparably injured by a material violation of
Sections 4 or 5 of this Agreement and agrees that the Company, in addition to
other remedies available to it for such material breach or threatened breach
will be entitled to a preliminary injunction, temporary restraining order, other
equivalent relief, restraining the Executive from any such actual or threatened
breach of Sections 4 or 5 of this Agreement. Furthermore, and subject to the
provisions set forth in the last sentence, in the event the Executive materially
breaches the provisions of Sections 4 or 5 of this Agreement as determined by
the CEO and Chairman of the Company, then, in addition to any other remedies
provided herein at law or in equity, the Company shall a) not have any
obligation to make any further payments to the Executive on or after the date of
any such breach or failure; and b) Company has the right to require the
Executive to return any compensation, including, but not limited to, cash
severance, bonus payments, stock option proceeds, or benefits payments, which
the Executive received as a result of the termination. Notwithstanding the
rights of the Company set forth in the preceding sentence, Company agrees that
it will refrain from unilaterally taking the actions permitted in (a) and (b)
above only with regard to the Company's allegations that the Executive breached
Sections 4(b)(i), (ii), (iii) and 4(c)(ii) of the Agreement if (i) the Executive
disputes the allegations in writing within 10 business days of notification by
the Company and (ii) the parties submit the dispute to arbitration as provided
in Section 15(h) below and (iii) Executive places all remuneration he received
and continues to receive from the Company as provided in Subsections (a) and (b)
above into an escrow account to be released to the prevailing party as
determined in the arbitration.
10. DEFENSE OF CLAIMS. The Executive agrees that, on and after the
Effective Date, he will reasonably cooperate with the Company and its Affiliates
(at Company's expense) in the defense of any claims that may be made against the
Company or its Affiliates to the extent that such claims may relate to services
performed by him for the Company.
11. SUCCESSORS AND ASSIGNS. This Agreement is personal to the Executive
and without the prior written consent of the Company the Executive's obligations
under this Agreement will not be assignable by the Executive. This Agreement
will inure to the benefit of and be binding upon the Company and its successors
and assigns.
12. INDEMNIFICATION. The Executive will be eligible for indemnification
as provided in the Company's Articles of Incorporation or Bylaws or pursuant to
other agreements in effect as of the effective date of this Agreement. In
addition, the Company will maintain directors' and officers' liability insurance
in effect and covering acts and omissions of the Executive, during the Term and
for a period of six years thereafter, on terms customary for companies that are
similar to the Company. The Company shall pay all costs, including all
reasonable legal fees, arising from any litigation in which Executive is named a
party due to his employment by the Company, subject to the Company's Articles of
Incorporation or Bylaws or its directors' and officers' liability insurance.
13. GENERAL RELEASE AND COOPERATION AGREEMENT. Notwithstanding anything
in Section 6 or Section 7 to the contrary and in consideration therefor,
severance benefits thereunder will only become payable by the Company if the
Executive executes and delivers to
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the Company a General Release and Cooperating Agreement on or after the date of
written notice of termination of Executive's employment and the release to be in
substantially the form attached as an example in Exhibit A hereof. The terms of
the General Release and Cooperating Agreement will reflect the post employment
rights and obligations provided under the terms of the Executive Employment
Agreement.
14. NOTICE. Any notice required or permitted to be given under this
Agreement will be in writing, signed by the party or parties giving or making
the same and will be served on the person or persons for whom it was intended or
who should be advised or notified, by Federal Express or other similar overnight
service. If the notice is sent to the Executive, the notice should be sent to
the address listed on the signature page of this Agreement or to such other
address furnished by the Executive in writing in accordance with this Agreement.
If notice is sent to the Company, the notice should be sent to:
Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000-0000
Attention: Chief Administrative Officer, with a copy
to General Counsel
or to such other address as furnished by the Company in writing in accordance
with this Agreement. Notice and communications will be effective when actually
received by the addressee.
15. MISCELLANEOUS.
(a) This Agreement is subject to and governed by the laws of
the State of Nebraska, United States of America, without reference to
principles of conflict of laws.
(b) The failure to insist upon strict compliance with any
provision of this Agreement will not be deemed to be a waiver of such
provision or any other provision or right of this Agreement.
(c) This Agreement may not be modified except by an agreement
in writing executed by the parties to this Agreement.
(d) The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any
other provision of this Agreement.
(e) The Company may withhold from any amounts payable under
this Agreement such Federal, state or local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
(f) This Agreement terminates and supersedes any and all prior
employment agreements or understandings, written or oral, with the
Executive and the Company or any of its subsidiaries or Affiliates. The
obligations of the Executive under Sections 4 and 5 shall survive
termination of this Agreement.
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(g) In the event of any dispute or controversy between the
parties, the non-prevailing party shall pay the attorney fees, costs
and expenses of the prevailing party.
(h) Any controversy, claim or dispute arising out of or
relating to this Agreement or breach thereof including, but not limited
to, determination of reasonableness as provided for under paragraph
6(g) herein, will be settled by final, binding and nonappealable
arbitration (excluding, however, any dispute, controversy or claim
arising out of Sections 4 or 5 but only to the extent not specifically
made subject to arbitration by Section 9 hereof) in Jersey City, New
Jersey by three arbitrators. Except as otherwise expressly provided in
this subsection (h), the arbitration shall be conducted in accordance
with the rules of the American Arbitration Association (the
"Association") then in effect. The Company shall appoint one of the
arbitrators. The Executive shall also appoint one of the arbitrators.
And, finally, the first two arbitrators shall appoint the third. If the
first two arbitrators cannot agree on the third arbitrator within 30
days of the appointment of the second arbitrator, then the Association
shall appoint the third. All expenses of such arbitration, including
fees and expenses of counsel, shall be borne by the Company unless the
arbitrators determine that the Executive's position was overall
frivolous or otherwise taken in bad faith, in which case the
arbitrators may determine that the Executive shall bear his own legal
fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMERITRADE HOLDING CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Chief Executive Officer
Agreed and Accepted:
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
------------------------------------------
Xxxxxx
------------------------------------------
Xxxx, Xxxxx and Zip Code
12
