EXHIBIT 10.20
AMERITRADE HOLDING CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") between
AMERITRADE HOLDING CORPORATION, a Delaware corporation (the "Company") and Xxxxx
X.X. Xxxxxx (the "Executive"), is made effective September 9, 2002 (the
"Effective Date").
The Executive is employed as Senior Vice President, General Counsel.
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
Senior Vice President, General Counsel 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 her 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
her services to the Company in accordance with the following:
(a) Base Salary. The Company will pay to the Executive an
annual base salary of $240,000, 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 60% 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 60% 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 $300,000 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) that competes 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
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for less than a 12-month period, the period in which the Executive was
employed by the Company ("Competitive Business"). For purposes of this
Agreement, the term "primary businesses" is defined as an online
brokerage business. Notwithstanding the foregoing, the Executive may
engage in the practice of law without any restriction other than
serving as in-house counsel for a Competitive Business and 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
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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, 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 she 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 her
employment for herself or an employer other than the Company, knowledge
which was acquired by her during the course of her employment with the
Company and which is generally to known to persons of her experience in
other companies in the same industry. Subject to Section 5(d),
Executive will be permitted to
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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 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
her 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.
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"Good Reason" is defined as one of the following events that occurs
without the 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, 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 Senior Vice President,
General Counsel.
(iii) a reduction in the Executive's then current
annual base salary; or Target Bonus.
(iv) any relocation of Executive's base office in
Baltimore, Maryland to an office that is
more than 35 highway miles from Annapolis
Junction, Maryland;
(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 her 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
$240,000), payable on regularly scheduled paydays for
a period equal to the greater of (A) 12 months or
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(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");
(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 her 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 her 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 her 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 $240,000), 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 her 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;
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(ii) the willful engaging by the Executive in
conduct which is materially injurious to the
Company, monetarily or otherwise;
(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 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
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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).
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, she 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 her 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
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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. 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 Chief
Executive Officer
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.
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(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 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
--------------------------------------------
Chief Executive Officer
/s/ Xxxxx X.X. Xxxxxx
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Xxxxx X.X. Xxxxxx
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Xxxxxx
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Xxxx, Xxxxx and Zip Code
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