EXHIBIT 10.19
AMERITRADE HOLDING CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") between AMERITRADE
HOLDING CORPORATION, a Delaware corporation (the "Company") and Xxxx X.
Xxxxxxxxx (the "Executive"), is made effective September 9, 2002 (the "Effective
Date").
The Executive is employed as Executive Vice President, Chief
Administrative Officer.
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 (Excluding for this purpose, any option agreements dated prior to the
Effective Date ("Prior Option Agreements"), which option agreements will remain
in full force and effect and be subject to the terms of the 1996 Long Term
Incentive Plan, 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 continue to employ the Executive as
Executive Vice President, Chief Administrative Officer 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 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") 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. 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")("Renewal Term" and "Term" collectively referred to as "Term").
Notwithstanding the foregoing, upon a "Change of Control" (as defined in Section
7 below), the initial Term of this 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 $300,000, 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 2002 and
subsequent fiscal years during the Term in accordance with the terms and
conditions of the MIP Plan with a target bonus of 100% of the Executive's
annual base salary for each fiscal year (the "Target Bonus"). The
Executive's Target Bonus for periods subsequent to the Company's fiscal
year 2002 during the Term will be 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 but shall
in no event be less than 100% of the Executive's annual base salary for
such subsequent period.
(c) Long-Term Incentive Plan. 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. The Executive will be eligible for an annual option award,
determined by the measurements established by the Compensation Committee
from time to time, with a target of $350,000 in present value, at the same
time and contingent upon options being granted to other Company executives
by the Compensation Committee. Number of options will be determined using
the same valuation methodology as other Company executives' grants.
(d) Deferred Compensation Program. The Executive will be eligible 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.
(e) Benefits and Perquisites. The Executive will also receive such
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.
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 and 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 activities and for any business
competitive with any of the primary businesses 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 ("Competitive Business").
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For purposes of this Agreement, the term "primary businesses" is defined
as (i) an online brokerage business, or (ii) a business, 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) knowingly 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) knowingly 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)
knowingly 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); 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
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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, when
employed by the Company, including such of the foregoing items conceived
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
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 to 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.
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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 10 business days following the Date of
Termination the unpaid portion of the Executive's then current annual base
salary through the Date of Termination and the Target Bonus under the MIP
Plan, as applicable, for the fiscal year in which the Date of Termination
occurs, 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 such prorated Target Bonus
under the MIP Plan, as applicable. 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 reasonable opinion of the Board of Directors of the
Company), even with reasonable accommodation, for a continuous period in
excess of 180 days 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 written consent of the Executive:
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(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, reporting
relationship or responsibilities which results in or reflects
a material reduction of the scope or importance of the
Executive's position, excluding for this purpose (1) an
isolated, unsubstantial or inadvertent action not taken in bad
faith and 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, no change in participation as a
member of the Executive Management Team, and whose position
still reports to the Company's CEO, so long as Executive's
position has a status substantially equal to, and duties and
responsibilities substantially the same as, the position of
Executive Vice President, Chief Administrative Officer.
(iii) a reduction in the Executive's then current annual base
salary; or Target Bonus.
(iv) any relocation of Executive's base office in Omaha, Nebraska
to an office that is more than 00 xxxxxxx xxxxx xxxx Xxxxx,
Xxxxxxxx;
(v) non-renewal of this Agreement by the Company by the end of the
"Term" (as provided in Section 2 above) upon substantially the
same terms and conditions as are set forth herein; or
(vi) the Company's requiring the Executive to travel on Company
business to a substantially greater extent than required
immediately prior to the Effective Date of this Agreement.
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:
(x) 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
$300,000), payable on 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");
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(y) the Executive will receive an amount equal to the Target Bonus under
the MIP Plan, as applicable, for the fiscal year in which the Date
of Termination occurs, payable at such time as bonuses are generally
payable for other participants under the MIP Plan; and
(z) 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.
The foregoing will be in lieu of all salary, bonuses or incentive or performance
based compensation 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 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 $300,000),
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 to
terminate the Executive's employment under this Agreement prior to the
expiration of the Term for reason of Cause. "Cause" means:
(i) the 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 from the Board specifying such failure;
(ii) the willful engaging by the Executive in conduct which is
materially injurious to the Company, monetarily or otherwise;
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(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 violation of the provisions of Section 4 or Section 5 of
this Agreement.
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;
(ii) the acquisition by any person, entity or group of the
beneficial ownership of 50% or more of the outstanding shares
of common stock of the Company;
(iii) 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
(iv) the consummation of a merger or consolidation of the Company
with any other corporation other than (1) 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 or (2) a merger
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 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)(x) and 6(e)(y) 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)(x) and 6(e)(y).
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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.
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 violation of Sections 4 or 5
of this Agreement and agrees that the Company, in addition to other remedies
available to it for such breach or threatened breach will be entitled to a
preliminary injunction, temporary restraining order, other equivalent relief,
restraining the Executive from any actual or threatened breach of Sections 4 or
5 of this Agreement. Notwithstanding the other provisions of this Agreement, in
the event the Executive breaches or otherwise fails to comply with 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 not have any
obligation to make any further payments to the Executive on or after the date of
any such breach or failure. Further, in the event of any such breach or failure
to comply with Sections 4 or 5, the Company has the right, in its sole
discretion, 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 cooperate with the Company and its Affiliates 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. After separation of employment, such cooperation will be compensable at
the same annual base salary as paid under the terms of this Agreement (as
prorated for required service period).
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.
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13. SEPARATION AND RELEASE 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 Separation and Release Agreement on or after the date
of written notice of termination of Executive's employment and in substantially
the form attached as an example in Exhibit A hereof. The terms of the Separation
and Release 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 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, 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
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any of its subsidiaries or Affiliates. The obligations of the Executive
under Sections 4 and 5 shall survive termination of this Agreement to the
extent provided in those sections.
(g) In the event of any dispute or controversy in arbitration
between the parties, the Company will pay the attorneys fees, costs and
expenses of the Executive if the Executive prevails.
(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 Omaha, Nebraska by three
arbitrators. Except as otherwise expressly provided in this subsection
(h), the arbitration shall be conducted in accordance with the commercial
arbitration 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.
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
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Chief Executive Officer
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
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Xxxxxx
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Xxxx, Xxxxx and Zip Code
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