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 Xxxxx
Xxxxx (the "Executive"), is made effective April 7, 2003 (the "Effective Date").
Recitals
The Executive desires to be employed as Executive Vice President, Chief
Information Officer of the Company and Company desires to employ the Executive
in such position.
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 Executive Vice
President, Chief Information Officer of the Company and as President of Big
Think Corp., a subsidiary of the Company 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"). Executive's duties will include
responsibility for managing the technology group ("TG") of the Company and all
technology associates employed by the Company, including but not limited to
staffing decisions, budget preparation and management, technology architecture,
operations of TG, applications development, and enterprise infrastructure.
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 third anniversary of the Effective Date,
unless earlier terminated in accordance with Section 6 below. Within 90 days
prior to the expiration of the Term, the Executive and the CEO shall negotiate
terms under which this agreement will renew for an additional 12 months
("Renewal Term" and "Term of Agreement" collectively referred to as "Term").
Notwithstanding the foregoing, upon a "Change of Control" (as defined in Section
7 below), the initial 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. At a minimum, the Executive shall receive
annual base salary increases in line with the Company's other senior
executives.
(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.
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 750,000 options on the Effective Date
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 125,000 every six months
following the grant date, until fully vested.
(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 as determined by the Compensation Committee.
(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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(f) Sign On Bonus. The Executive shall be paid $200,000 by the
Company on his first day of employment as a sign on bonus. The
Executive shall be obligated to repay the $200,000 to the Company if he
voluntarily terminates his employment with the Company before the first
anniversary of the Effective Date, other than for Good Reason, as
defined below.
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 any of the primary businesses ("Competitive Business")
conducted or formally proposed to be conducted by the Company or any of
its Affiliates (as defined below) 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 "primary businesses" is defined as (i) an online
brokerage business, or (ii) a business function, product or service for
which the Executive was responsible 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 engage or participate in, 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
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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); and
(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.
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(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 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 as soon as practicable following the
Date of Termination (a) the unpaid portion of the Executive's then
current annual base salary through the Date of Termination, (b) all
accrued but unused vacation and personal days through the Date of
Termination in accordance with company policy, and (c) the Bonus under
the MIP Plan, for the fiscal year in which the Date of Termination
occurs, the payments in (c) 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 (c) 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.
(c) Death or Disability. If the Executive becomes physically
or mentally disabled and unable to perform the essential functions of
his employment (in the
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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 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 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 highway miles from Jersey City,
New Jersey or the Executive's place of
residence as of the Effective Date;
(v) non-renewal of this Agreement by the Company
by the end of the "Term of Agreement" (as
provided in Section 2 above) upon
substantially the same terms and conditions
as are set forth herein;
(vi) failure of any successor to the company
(whether direct or indirect and whether by
merger, acquisition, consolidation, or
otherwise) to
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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 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:
(vii) 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");
(viii) the Executive will receive an amount equal
to the Executive's target Bonuses under the
MIP Plan, as applicable, 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;
(ix) 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.
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.
In the event that the Company does not renew the Executive's employment
at the end of the Renewal Term, 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
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Renewal Term and ending on the date specified by the Company, which
shall not be later than the first anniversary of expiration of the
Renewal Term, 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 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 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.
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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:
(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
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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.
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. Notwithstanding the other
provisions of this Agreement, in the event the Executive materially breaches the
provisions of Sections 4 or 5 of this Agreement, 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.
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.
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 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 be subject to 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
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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.
(g) In the event of any dispute or controversy between the
parties, the non-prevailing party will pay the attorneys 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 will be settled by final,
binding and nonappealable arbitration (excluding, however, any dispute,
controversy or claim arising out of Sections 4 or 5 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
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with the rules of the American Arbitration Association (the
"Association") then in effect. One of the arbitrators shall be
appointed by the Company, one shall be appointed by the Executive and
the third shall be appointed by the first two arbitrators. 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/ Xxxxx Xxxxx
---------------------------------------------
Xxxxx Xxxxx
---------------------------------------------
Xxxxxx
---------------------------------------------
Xxxx, Xxxxx and Zip Code
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