Exhibit 10.18
SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION AND RELEASE AGREEMENT ("Agreement") is made this 26th day
of August, 2005, effective as of the close of business August 26, 2005
("Effective Date"), by and between Ameritrade Holding Corporation, and its
successors and assigns (collectively, the "Company") and Xxxx X. Xxxxxxxxx,
Executive Vice President and Chief Administrative Officer, his heirs,
representatives, affiliates, successors and assigns (collectively the
"Employee").
WITNESSETH:
WHEREAS, Employee and the Company are parties to an Employment Agreement
dated September 9, 2002, (the "Employment Agreement") pursuant to which Employee
is employed by the Company; and
WHEREAS, the Company and Employee agree that the Employee's employment
under the Employment Agreement shall terminate without cause as of close of
business on August 26, 2005, and
WHEREAS, the Company recognizes Employee's longstanding, unique and
valuable contributions made over his 18 years of loyal service to the Company;
and
WHEREAS, as a condition precedent to Employee receiving certain of the
severance benefits enumerated in the Employment Agreement, Employee and Company
agreed to execute this Agreement.
NOW, THEREFORE, in consideration of the covenants undertaken in this
Agreement, including the release contained herein, the parties agree as follows:
1. Severance Payments In full and complete satisfaction of Employee's
claims under the Employment Agreement, including, but not limited to,
salary, vacation, bonus, stock options, severance, change in control
payments, incentive pay, sick pay, benefits, holiday, out placement
services and other compensation of any kind, and as consideration for
the promises contained in this Agreement, including but not limited to
the release set forth in paragraph 6 herein, upon the later to occur
of (a) expiration of the seven (7) day revocation period explained in
Section 15 below, or (b) the Effective Date ("Expiration Date") and
subject to Employee's compliance with the terms of this Agreement, the
Company agrees to provide Employee with the following payments and
benefits, as reiterated below for convenience:
a. The Company shall pay Employee a base salary sum equal
to three-hundred-thousand dollars ($300,000) (the "Base
Salary") pursuant to Section 6(e)(x) of the Employment
Agreement. A portion of the Base Salary in
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the amount of
one-hundred-forty-nine-thousand-nine-hundred-ninety-nine
dollars and eighty-nine cents ($149,999.89) shall be payable
in a lump sum approximately six (6) months after Effective
Date on March 10, 2006, with the remaining Base Salary paid
in equal installments of
eleven-thousand-five-hundred-thirty-eight dollars and
forty-seven cents ($11,538.47) (any payments shall have all
applicable federal, state and local taxes withheld), with
such remaining payments to be payable pursuant to Company's
regular payroll schedule commencing on March 24, 2006 and
ending on September 8, 2006 ;
b. The Company shall pay Employee Earned Bonus at Target,
pro-rated for the period employed during fiscal year 2005,
paid pursuant to the termination provisions of Section 6(b)
in the Employment Agreement in the amount of
five-hundred-forty-three-thousand-four-hundred-twenty
dollars ($543,420), representing 90.57% of $600,000 and
payable on September 9, 2005;
c. Employee shall receive payment of his accrued but unused
paid time off (the "PTO") balance, payable on September 9,
2005;
d. An annual Bonus at Target in the amount of
six-hundred-thousand dollars ($600,000), payable pursuant to
Section 6(e)(y) of the Employment Agreement and paid at the
same time as other MIP participants receive their MIP
bonuses, on or about October 31, 2005;
e. A special bonus of one-million-eight-hundred-thousand
dollars ($1,800,000) to be paid January 13, 2006;
f. If the Employee or any of his dependents are participating
in medical and dental coverage under any Company group
medical or dental plan, the Company will pay the employer
premium costs of the coverage (the "Employer Premium") for
twelve (12) months from September 1, 2005 through August 31,
2006 (the "Covered Period"). Employee will pay the employee
portion of monthly premiums (the "Employee Premium") by
remitting a check payable to the Company by the tenth (10th)
of each month, commencing in September 2005 in the amount of
two-hundred-twenty-nine dollars and ninety cents ($229.90)
for medical and thirty-six
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dollars and seventy-two cents ($36.72) for dental coverage.
Employee Premium may be adjusted as rates change for all
employees (the "New Rates") and Company will notify Employee
of such rate change. Company will pay to the Employee an
amount equal to monthly Employee Premiums, subject to New
Rates as applicable and grossed up for taxes at supplemental
withholding rates on the first regularly scheduled payroll
dates of each month during the Covered Period. To the extent
Employee is eligible for medical or dental coverage under
another plan (the "Other Coverage"), Employee will
immediately notify Company and Company will cease Company
medical or dental coverage coincident with the end of the
calendar month Employee is eligible for Other Coverage. To
the extent that Employee is not eligible for Other Coverage,
at the end of the Covered Period, Employee shall be eligible
for COBRA continuation coverage (as described in Section
4980B of the Internal Revenue Code of 1986, as amended).
g. Employee's Company stock options shall be governed by the
terms of the respective stock option agreements and the
applicable plan document.
Except as provided herein, Employee will be entitled to no other or
further compensation, remuneration, payments or benefits of any kind,
including but not limited to bonuses, paid time off hours, profit
sharing and/or 401(k) plan Company contributions, insurances and other
salary continuation benefits. However, nothing in this Agreement is
intended to divest Employee of any vested rights, if any, in a Profit
Sharing and/or 401(k) plan.
2. Assignment of Claims. In consideration of the payments and benefits to
Employee in Section 1 herein, and Employee's execution of this
Agreement, and as an express condition of this Agreement, Employee
hereby represents and warrants that, up through the date on which this
Agreement is executed by the parties, he has not assigned or
transferred, and he will not after such date assign or transfer, (a)
any claims against the Company, (b) any rights that he may have had to
assert compulsory or permissive counterclaims against the Company, or
(c) any rights that he has or may have to aforesaid payments and
benefits.
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3. Return of Property. Employee hereby agrees that, within ten (10)
calendar days after the Effective Date, he shall turn over to the
Company all company equipment and property, including but not limited,
to computers, printers, and related equipment, cell phones, pagers,
Company Credit cards, and keys, as well as originals and copies of
notes, correspondence, memoranda, records, documents, computer disks
and files, and all other information or products, no matter how
produced or reproduced, pertaining to the business of the Company, its
subsidiaries, affiliates, officers, and shareholders ("Company
Materials"), it being hereby acknowledged that all of said items are
the sole and exclusive property of the Company. Employee's signature
on this Agreement shall serve as a representation and warranty that
Employee has not retained any originals or copies of Company
Materials.
4. Non-Compete and Confidentiality. As an inducement for the Company to
enter into this Agreement and in furtherance of the terms of the
Employment Agreement, Employee expressly agrees that he provides
unique and specialized services, skills and expertise to the Company,
and that the Company hired him because of the unique and specialized
services, skills and expertise he is able to provide. Employee further
expressly agrees that he has been given access to Confidential
Information and trade secrets of the Company and Ameritrade and their
subsidiaries (collectively "Ameritrade"). Accordingly, Employee
acknowledges and reaffirms his obligations under the terms of Sections
4 and 5 of the Employment Agreement through the Effective Date and for
a 12 month period thereafter ("Restricted Period").
5. Remedies for Breach The parties agree that it will be very difficult
to determine damages caused to the Company should there be a breach by
Employee of the provisions of this Agreement, including, but not
limited to, Section 4, and therefore, in addition to any other rights
or remedies afforded to the Company and not as a penalty, further
agree that if a breach of any of the provisions of this Agreement or
the Employment Agreement occurs (Forfeiture Event), Employee will
immediately forfeit all severance payments and benefits paid or due to
be paid under Section 1 above ("Forfeited Amount").
Payment to the Company of any Forfeited Amount will be made by any or
all of the following methods, at the sole discretion of the CEO of the
Company to recoup the Forfeited Amount:
i. The Company may subtract any Forfeited Amount from any
payment payable to the Employee by the Company or any
related entity after the Forfeiture Event, and/or
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ii. The Employee will pay to the Company any Forfeited Amount
which is not repaid to the Company pursuant to paragraph i.
above within 30 days of the Forfeiture Event.
6. Release. Except for claims based upon a breach of this Agreement, in
consideration of the promises contained in this Agreement and the
payments set forth in Section 1 hereof, Employee hereby releases and
forever discharges the Company, its subsidiaries and affiliates, and
its officers, directors, shareholders, representatives, agents,
predecessors, employees, successors and assigns (hereinafter
collectively and individually the "Company Releasees") from and
concerning any and all liabilities, rights, claims, demands, debts,
dues, sums of money, accounts, attorney's fees, complaints, judgments,
executions, actions and causes of action of any nature whatsoever,
from the beginning of the world through the Effective Date, whether
known or unknown, contingent or noncontingent, that Employee may now
or in the future have against Company Releasees, including but not
limited to any damages, xxxxx, personal injuries or any rights,
claims, complaints or actions or causes of action which were or could
have been asserted by Employee arising out of or related to his work
for the Company or his separation therefrom, or not being hired by
Ameritrade, or any other relationship with Company Releasees, or under
any local, state, or federal human rights, civil rights, labor,
employment, contract, tort or other laws including, but not limited
to, those dealing with employment discrimination, including Title VII
of the Civil Rights Act of 1964, as amended, the Americans with
Disabilities Act, the Employee Retirement Income Security Act of
1974, as amended ("ERISA") and the Worker Adjustment and Retraining
Notification Act of 1988. This release is not intended to waive any
rights or claims that may arise after the date Employee signs this
Agreement. Employee agrees to hold Company harmless from any costs or
expenses, including without limitation, attorney fees, if sued by
Employee or Employee's assignee, with respect to any of the claims
released in this section.
7. Proceedings. Employee represents that he has not sued or commenced any
proceeding, and except for claims based upon a breach of this
Agreement, hereby covenants and agrees not to xxx, file any grievances
or arbitration or commence any other proceeding, administrative or
judicial, against the Company or the Company Releasees, in any court
of law or equity, or before any administrative agency, with respect to
any matter arising from or relating to Employee's employment with the
Company, his separation thereof, or otherwise.
8. Non-Disparagement/Non-Disclosure. Employee shall not disparage or make
negative, derogatory or defamatory statements about the Company, its
business activities, or any of its directors, officers, employees,
affiliates, agents, or representatives, or any of them, to the press,
any person or
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business entity. The Company agrees that it shall not disparage or
make negative, derogatory statements about the Employee. Disparagement
shall in no event include statements of testimony provided pursuant to
or in connection with legal regulatory matters. Employee agrees not to
disclose the contents of this Agreement, unless required by law. This
restriction will not apply to disclosure by Employee to members of
immediate family or to legal, tax or financial advisors; provided that
they are advised of this provision and Employee uses his best efforts
to protect against any further disclosure by these persons.
9. Termination Cause; No Reinstatement or Hire. The Company and the
Employee acknowledge and agree that Employee's employment with the
Company will end on August 26th, 2005. Employee agrees that by signing
this Agreement and accepting the Severance Benefits that he is giving
up any right that he has, or may have, to reapply for, be reinstated
to, or to be hired for a position with the Company or any of the
Company Releasees.
10. Transition. The Employee agrees to use reasonable efforts to cooperate
with the Company, for whatever period of time the Company deems
reasonably necessary, to ensure a smooth transition of his duties,
provided that such cooperation does not unduly interfere or conflict
with his duties as an employee of any entity other than the Company
and does not require Employee to incur any out of pocket cost or
expense.
11. Adequate Consideration. Employee expressly acknowledges that he has
received adequate consideration in exchange for the release given in
this Agreement, and the other obligations contained herein, and
covenants that he will not in any way seek to challenge this Agreement
on the grounds of lack of consideration.
12. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Nebraska, without regard to the conflict of
law provisions of any state or jurisdiction, to the extent not
preempted by ERISA.
13. Arbitration. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT (OR THE BREACH THEREOF) OR EMPLOYMENT OR CESSATION OF
EMPLOYMENT BY COMPANY AND NOT OTHERWISE RELEASED, SHALL BE SETTLED BY
FINAL, BINDING AND NONAPPEALABLE ARBITRATION. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS PARAGRAPH 13, THE ARBITRATION SHALL BE
CONDUCTED IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION
ASSOCIATION (THE "ASSOCIATION") THEN IN EFFECT. THE ARBITRATOR CHOSEN
BY THE PARTIES SHALL BE A FORMER JUDGE. ANY AND ALL PROCEEDINGS,
HEARINGS, FINDINGS OR ANY OTHER RECORD OF A DISPUTE SO INVOLVED,
INCLUDING BUT NOT LIMITED TO THE PARTIES TO THIS AGREEMENT AND ANY
APPOINTED ARBITRATOR SHALL BE CONFIDENTIAL. Nothing in this paragraph
shall be construed to limit
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the Company's ability to obtain equitable relief with respect to any
matter or controversy arising from an alleged actual or threatened
breach of paragraph 5 of this Agreement without first being required
to arbitrate such matter or controversy.
14. Counterparts. This Agreement may be signed in multiple counterparts,
each of which shall be deemed to be an original for all purposes.
15. Acknowledgement. Employee acknowledges that he has carefully read and
fully understands the terms and provisions of this Agreement; that he
is legally competent, and capable of signing this Agreement; that he
has been cautioned to consult with an attorney prior to signing this
Agreement; and that sufficient opportunity had been made available to
him to consult with an attorney to consider the terms of this
Agreement and that he has availed himself of that right. Employee
further acknowledges that he has not relied upon any oral
representation or statement by the Company or its representation or
statement by the Company or its representatives, which is not set
forth in this Agreement. Employee shall have the right to revoke this
Agreement at any time up to seven (7) days following his execution of
the Agreement. This Agreement shall not be enforceable or effective
until after the seven-day revocation period has expired.
16. Cooperation. Employee agrees to cooperate fully with Company in any
matters that may have or may result in a proceeding or legal claim
against the Company, and of which Employee may have knowledge as a
result of his employment. This requires Employee, without limitation
to (1) make himself available upon reasonable request to provide
information and assistance to the Company on such matters without
additional compensation, except for reimbursement of your
out-of-pocket costs, and (2) notify the Company promptly or any
requests to him for information related to any pending or potential
legal claim or litigation involving the Company, reviewing any such
request with a designated representative of the Company prior to
disclosing any such information, and permitting the representative of
the Company to be present during any communication of such
information. Notwithstanding anything to the contrary, the Company's
obligation to reimburse Employee for costs will not apply to any
proceeding in which Employee or his interests are, in whole or in
part, as determined by the Company, adverse to those of the Company,
or if such proceeding involves, in whole or in part, Employee's breach
or alleged breach of his obligations under this Agreement or the
violation of any obligation which Employee owed to the Company during
the course of or in connection with employment by the Company.
17. Entire Agreement. This Agreement, the Employment Agreement through the
Effective Date and the surviving provisions of the Employment
Agreement after the Effective Date constitute the entire understanding
of
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the parties, supersedes all prior oral or written agreements, and
cannot be modified in nor any of its conditions waived, except by a
writing signed by both parties. No agreements or representations, oral
or otherwise, expressed or implied, with respect to the subject matter
hereof have been made by any party, which are not set forth expressly
in this Agreement. To the extent of any inconsistency between the
terms of this Agreement and the terms of the Employment Agreement, the
terms of this Agreement will control.
18. Section 409A of the Code. The Company and the Employee agree to work
together in good faith to consider, as applicable, (i) any amendment
to this Agreement or (ii) any revisions to the manner of any payment
of benefits under this Agreement, which may be necessary or
appropriate to avoid imposition of any additional tax or income
recognition prior to the actual payment to Employee under Section 409A
of the Code and any temporary or final Treasury Regulations and
Internal Revenue Service guidance thereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth below.
AMERITRADE HOLDING CORPORATION
Date: 8/26/05 By: /S/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: CEO
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ACKNOWLEDGMENTS AND CERTIFICATIONS:
YOU ACKNOWLEDGE AND CERTIFY THAT YOU:
(A) HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND DO NOT
RELY ON ANY REPRESENTATION OR STATEMENT, WRITTEN OR ORAL, NOT SET
FORTH IN THIS AGREEMENT;
(B) UNDERSTAND THAT THIS AGREEMENT SPECIFICALLY APPLIES TO ANY RIGHTS OR
CLAIMS YOU MAY HAVE AGAINST AMERITRADE OR ANY RELEASED PARTY UNDER THE
FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED;
(C) UNDERSTAND THAT THIS AGREEMENT DOES NOT PURPORT TO WAIVE RIGHTS OR
CLAIMS THAT MAY ARISE FROM ACTS OR EVENTS OCCURRING AFTER THE DATE
THAT THIS AGREEMENT IS EXECUTED BY YOU;
(D) HAVE HAD A REASONABLE PERIOD OF TIME TO CONSIDER THIS AGREEMENT;
(E) ARE SIGNING THIS AGREEMENT KNOWINGLY AND VOLUNTARILY;
(F) HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS
AGREEMENT;
(G) HAVE THE RIGHT TO CONSIDER THE TERMS OF THIS AGREEMENT FOR 45 DAYS AND
IF YOU TAKE FEWER THAN 45 DAYS TO REVIEW THIS AGREEMENT, YOU HEREBY
WAIVE ANY AND ALL RIGHTS TO THE BALANCE OF THE 45 DAY REVIEW PERIOD;
AND
(H) HAVE THE RIGHT TO REVOKE THIS AGREEMENT WITHIN SEVEN DAYS AFTER
SIGNING IT (THE "REVOCATION PERIOD") AND THEREFORE THIS AGREEMENT
SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE EXPIRATION OF THE
REVOCATION PERIOD. IF YOU CHOOSE TO REVOKE THIS AGREEMENT, YOU MUST DO
SO BY NOTIFYING AMERITRADE IN WRITING DELIVERED TO
AMERITRADE
ATTN: XXXXX XXXXXXXX
0000 X. 000XX XXXXXX
XXXXX, XX 00000
IF YOU REVOKE THIS AGREEMENT DURING THIS SEVEN-DAY PERIOD, IT AT
ONCE BECOMES NULL AND VOID IN ITS ENTIRETY.
THIS IS A LEGALLY ENFORCEABLE DOCUMENT.
Date: 8/26/05 /S/ XXXX X. XXXXXXXXX
----------------------------------------
XXXX X. XXXXXXXXX
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