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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of August 2, 1999 (the "Effective
Date"), by and between Xxxxxxx Xxxxxxxx ("Passione") and OnMoney Financial
Services Corp. ("OnMoney"), a subsidiary of Ameritrade Holding Corporation;
WITNESSETH THAT:
WHEREAS, the parties desire to enter into this Agreement pertaining to the
employment of Passione by OnMoney;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, it is hereby covenanted and agreed by Passione and OnMoney as
follows:
1. Performance of Services. Passione's employment with OnMoney shall be
subject to the following:
(a) Subject to the terms of this Agreement, OnMoney hereby agrees to employ
Passione as an executive during the Agreement Term (as defined below) and
Passione hereby agrees to remain in the employ of OnMoney during the
Agreement Term.
(b) During the Agreement Term, while Passione is employed by OnMoney, Passione
shall devote his full time, energies and talents to serving as its
executive and agrees that he shall perform his duties faithfully and
efficiently subject to the directions of the Chairman of the Board of
Directors of OnMoney ("the Chairman") during the Agreement Term. Passione's
duties may include providing services for both OnMoney and the Subsidiaries
(as defined below), as determined by the Chairman. Passione shall have such
authority, power, responsibilities and duties as are inherent in his
position (and the undertakings applicable to his position) and necessary to
carry out his responsibilities and the duties required of him hereunder.
(c) Notwithstanding the foregoing provisions of this paragraph 1, during the
Agreement Term, Passione may devote reasonable time to activities other
than those required under this Agreement, including the supervision of his
personal investments, and activities involving professional, charitable,
community, educational, religious and similar types of organizations,
speaking engagements, and similar types of activities, to the extent that
such other activities do not, in the judgement of the Chairman, inhibit or
prohibit the performance of Passione's duties under this Agreement, or
conflict in any material way with the business of OnMoney or any
Subsidiary; provided, however, that Passione shall not serve on the board
of any business, or hold any other position with any business, without the
consent of the Chairman.
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(d) Subject to the terms of this Agreement, Passione shall not be required to
perform services under this Agreement during any period that he is
Disabled. Passione shall be considered Disabled during any period in which
he has a physical or mental disability which renders him incapable, after
reasonable accommodation, of performing his duties under this Agreement. In
the event of a dispute as to whether Passione is Disabled, OnMoney may
refer the same to a licensed practicing physician of OnMoney's choice, and
Passione agrees to submit to such tests and examinations as such physician
shall deem appropriate. During the period in which Passione is Disabled,
the Chairman may appoint a temporary replacement to assume Passione's
responsibilities.
(e) The "Agreement Term" shall be the period beginning on the Effective Date
and ending on the third anniversary of the Effective Date. Thereafter, the
Agreement Term will be automatically extended for 12-month periods, unless
one party to this Agreement provides notice of non-renewal to the other at
least 90 days before the last day of the Agreement Term. If a Change in
Control occurs during the Agreement Term, the Term shall automatically be
extended to the two-year anniversary of the Change in Control date.
(f) For purposes of this Agreement, the term "Subsidiary" shall mean any
corporation, partnership, joint venture or other entity during any period
in which at least a fifty percent interest in such entity is owned,
directly or indirectly, by OnMoney (or a successor to OnMoney).
2. Compensation. Subject to the terms of this Agreement, during the
Agreement Term, while Passione is employed by OnMoney, OnMoney shall compensate
him for his services as follows:
(a) Passione shall receive, for each 12-consecutive month period beginning on
the Effective Date and each anniversary thereof, in substantially equal
monthly or more frequent installments, an annual base salary of not less
than $300,000.00 ("the Salary"). Passione's Salary rate shall be reviewed
by the Compensation Committee of the Board of Directors of OnMoney (the
"Committee"), while Passione is employed by OnMoney, to determine whether
an increase in the amount of Salary is appropriate. In no event shall the
Salary of Passione be reduced to an amount that is less than the amount
specified in this paragraph (a), or to an amount that is less than the
amount that he was previously receiving, except to the extent that
reductions of the same percentage are being made at the same time to the
salaries of all other Company officers in the corporate office at or above
the vice-president level, and such Salary shall be restored to its prior
level when, and to the same extent, as the restoration that applies to the
other officers.
(b) Passione shall be entitled to incentive compensation in the form of an
annual cash bonus, based upon a target amount as established by the
Committee, but in no event shall be the
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target be less than $250,000.00. Such bonus shall be pro rated to the extent the
period worked is less than the applicable Performance Period, or to the extent
that a Performance Period is less than 12 months. Subject to the immediately
preceding sentence, the actual amount of such bonus, if any, shall be determined
by the Committee taking into consideration whether Passione has met the
performance targets that have been set by the Committee for such year, the
relative contribution by Passione to the business of OnMoney, general economic
conditions, and such other factors as the Committee deems relevant. For purposes
of this paragraph, the term Performance Period shall mean the period of time
established by the Committee, which has historically been a period of 6 months.
(i) For purposes of this paragraph, Passione's first bonus payment
shall be for the period beginning on the Effective Date and
ending on September 30, 1999. Such payment shall be in the amount
of $125,000.00 and will be made at the same time and in the same
manner as bonuses are paid to other senior executives of OnMoney.
(ii) For purposes of this paragraph, Passione's second bonus payment
shall be for the 6 month period ending on March 31, 2000. Such
payment in the amount of $125,000.00 will be made, at the same
time and in the same manner as bonuses are paid to other senior
executives of OnMoney.
(c) Stock Options.
(i) Within 6 months from the Effective Date (but in any event prior
to the filing of a registration statement for the Initial Public
Offering, as defined below), OnMoney shall adopt a stock option
plan (the "Option Plan") and Passione shall be awarded a
non-qualified stock option (the "Initial Option") pursuant to the
Option Plan to purchase shares of OnMoney's common stock equal to
2.5% of the number of outstanding shares of common stock of
OnMoney (determined as of the date of the grant of the Initial
Option). The per share exercise price of the Initial Option shall
be the Fair Market Value of the OnMoney's Stock as of the date of
the grant, as defined by the terms of the Option Plan. The
Initial Option, subject to the terms and conditions of the Option
Plan, shall become exercisable with respect to 25% of the shares
as of the first anniversary of the grant date and with respect to
an additional 25% of the shares on each subsequent anniversary
date until such time as the Initial Option is fully exercisable,
provided Passione is employed by OnMoney on such anniversary
dates or the Initial Option becomes otherwise exercisable in
accordance with the terms of this Agreement.
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Subsequent to the Initial Public Offering, OnMoney shall file and
maintain in effect a registration statement covering shares
issuable upon the exercise of options awarded under the Option
Plan.
(ii) Prior to the earlier of the one year anniversary of the Effective
Date or the Initial Public Offering, the Committee shall review
the performance of Passione and, based upon such performance,
will consider an increase in Passione's compensation and will
consider granting to Passione an additional non-qualified stock
option award (the "Additional Option") pursuant to the terms and
conditions of the Option Plan, with such award to be made, if it
is made, prior to the Initial Public Offering, with an exercise
price equal to the Fair Market Value of OnMoney's stock as of the
date of grant.
(iii) As of Effective Date, Passione shall be awarded a non-qualified
stock option (the "Ameritrade Option") under the Ameritrade
Holdings Corporation 1996 Long Term Incentive Plan (the
"Ameritrade Plan") to purchase 25,000 shares of Ameritrade
Holding Corporation ("Ameritrade") common stock (the "Ameritrade
Stock") at a per share price equal to the Fair Market Value of a
share of Ameritrade Stock on the date of the award. The
Ameritrade Option shall become exercisable with respect to 50% of
the shares covered by the option on the Election Date, defined
below, if Passione makes the Option Election, as defined below,
to be effective on such date, and will then become exercisable
with respect to an additional 25% of the shares on each
subsequent anniversary of the Election Date until such time as
the option is fully exercisable, provided that Passione is
employed by OnMoney or Ameritrade on such anniversary date or
such Ameritrade Option becomes otherwise exercisable under the
terms of this Agreement. The Ameritrade Option shall expire upon
the earlier to occur of the following events; (A) Passione does
not make the Option Election on the Election Date, (B) Passione
exercises any portion of the Initial Option or the Additional
Option prior to the Election Date, (C) the Initial Public
Offering occurs prior to the Election Date, or (D) it otherwise
expires under the terms and conditions of the Ameritrade Plan.
(iv) In the event that the Initial Public Offering of OnMoney does not
occur by the 24-month anniversary of the Effective Date (the
"Election Date"), Passione shall have the right to make a one
time irrevocable election (the "Option Election") to have the
Initial Option and the Additional Option canceled in their
entireties, with no future rights or
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entitlement thereunder, at which time Passione shall become
partially vested in the Ameritrade Option pursuant to the terms
of the preceding paragraph.
(d) One-Time Payments. To compensate Passione for forgoing alternative business
opportunities, OnMoney shall provide to Passione a one time bonus payment
of $125,000.00 within 60 days of the Effective Date. In the event that
Passione's employment with OnMoney terminates pursuant to paragraph 3(e) of
this Agreement prior to the one-year anniversary of the Effective Date, the
amount previously paid pursuant to this paragraph 2(d) shall be repaid by
Passione to OnMoney within 10 business days of the Date of Termination.
(e) Passione shall be entitled to participate in all employee pension and
welfare benefit plans and programs made available to OnMoney's senior level
executives or to its employees generally, as such plans or programs may be
in effect from time to time, including, without limitation, pension, profit
sharing, savings and other retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life insurance
plans, supplemental life insurance, accidental death and dismemberment
protection, travel accident insurance, and any other pension or retirement
plans or programs and any other employee welfare benefit plans or programs
that may be sponsored by OnMoney from time to time, including any plans
that supplement the above-listed types of plans or programs, whether funded
or unfunded. OnMoney, however, shall not be required to provide a benefit
under this paragraph (e) if such benefit would duplicate (or otherwise be
of the same type as) a benefit specifically required to be provided under
another provision of this Agreement. Passione shall complete all forms and
physical examinations, and otherwise take all other similar actions to
secure coverage and benefits described in this paragraph 2, to the extent
determined to be necessary or appropriate by OnMoney.
(f) Passione shall be authorized to incur reasonable expenses for
entertainment, traveling, meals, lodging and similar items in promoting
OnMoney's business. OnMoney will reimburse Passione for all reasonable
expenses so incurred in accordance with the normal practices of OnMoney.
Passione shall not be entitled to reimbursement for expenses associated
with the relocation of his personal residence related to the acceptance of
employment with OnMoney.
(g) OnMoney shall maintain directors and officers liability insurance in
commercially reasonable amounts (as reasonably determined by the Board of
Directors of OnMoney, the "Board"), and Passione shall be covered under
such insurance to the same extent as other senior management employees of
OnMoney. Passione shall be eligible for indemnification by OnMoney under
OnMoney by-laws as currently in effect. OnMoney
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agrees that it shall not take any action that would impair Passione's
rights to indemnification under OnMoney by-laws, as currently in effect.
(h) Passione shall be entitled to paid vacations in accordance with the
applicable policy of OnMoney as in effect from time to time, subject to a
minimum of 3 weeks per annum.
3. Termination. Passione's employment with OnMoney during the Agreement
Term may be terminated by OnMoney or Passione without any breach of this
Agreement only under the circumstances described in paragraphs 3(a) through
3(g):
(a) Death. Passione's employment hereunder will terminate upon his death.
(b) Permanent Disability. OnMoney may terminate Passione's employment during
any period in which he is Permanently Disabled. Passione shall be
considered "Permanently Disabled" during any period in which he is
Disabled; provided, however, that Passione shall not be considered to be
"Permanently Disabled" until, for a period of 180 consecutive days,
Passione, as a result of a physical or mental disability, is incapable,
after reasonable accommodation, of performing his duties under this
Agreement on a permament, full-time basis, and is eligible for income
replacement benefits under OnMoney's long-term disability plan during such
period of disability. In the event of a dispute as to whether Passione is
Permanently Disabled, OnMoney may refer the same to a mutually acceptable
licensed practicing physician, and Passione agrees to submit to such tests
and examination as such physician shall deem appropriate.
(c) Cause. OnMoney may terminate Passione's employment hereunder at any time
for Cause. For purposes of this Agreement, the term "Cause" shall mean:
(i) the willful and continued failure by Passione to substantially
perform his duties with OnMoney (other than any such failure
resulting from Passion's being Disabled), within a reasonable period
of time after a written demand for substantial performance is
delivered to Passione by the Board, which demand specifically
identifies the manner in which the Board believes that Passione has
not substantially performed his duties;
(ii) the willful engaging by Passione in conduct which is demonstrably and
materially injurious to OnMoney, monetarily or otherwise; or
(iii) the engaging by Passione in egregious misconduct involving serious
moral turpitude to the extent that, in the reasonable judgment of
OnMoney's Board, Passione's credibility and reputation no longer
conform to the standard of OnMoney's executives.
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(iv) the violation by Passione of the representations made pursuant to
paragraph 10 of this Agreement.
For purposes of this Agreement, no act, or failure to act, on Passione's
part shall be deemed "willful" unless done, or omitted to be done, by
Passione not in good faith and without reasonable belief that Passione's
action or omission was in the best interest of OnMoney.
(d) Constructive Discharge. If Passione (i) provides notice to OnMoney of the
occurrence of Good Reason (as defined below) within a reasonable time after
Passione has knowledge of the circumstances constituting Good Reason, which
notice shall specifically identify the circumstances which Passione
believes constitute Good Reason; (ii) OnMoney fails to notify Passione of
OnMoney's intended method of correction within a reasonable period of time
after OnMoney receives the notice, or OnMoney fails to correct the
circumstances within a reasonable time after such notice (except that no
such opportunity to correct shall be applicable if the circumstances
constituting Good Reason are those described in paragraph (ii) below,
relating to relocation); and (iii) Passione resigns within a reasonable
time after receiving OnMoney's response, if such notice does not indicate
an intention to correct such circumstances; or within a reasonable time
after OnMoney fails to correct such circumstances, then Passione shall be
considered to have been subject to a Constructive Discharge by OnMoney. For
purposes of this Agreement, "Good Reason" shall mean, without Passione's
express written consent (and except in consequence of a prior termination
of Passione's employment), the occurrence of any of the following
circumstances:
(i) A reduction by OnMoney in Passione's Salary to an amount that is less
than required under paragraph 2(a).
(ii) The relocation of Passione's base office to an office that is more
than 75 highway miles of Passione's base office on the Effective Date.
(iii) The failure of OnMoney to obtain a satisfactory agreement from any
successor to assume and agree to perform this Agreement.
Passione's right to terminate his employment pursuant to this paragraph (d)
shall not be affected by his incapacity due to Passione's Disability.
Passione's continued employment shall not constitute consent to, or a
waiver of rights with respect to, any circumstance constituting Good Reason
hereunder.
(e) Termination by Executive. Passione may terminate his employment hereunder
at any time for any reason by giving OnMoney prior written Notice of
Termination (as defined in paragraph 3(h)), which Notice of Termination
shall be effective not less than 30 days
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after it is given to OnMoney, provided that nothing in this Agreement shall
require Passione to specify a reason for any such termination. However, to
the extent that the procedures specified in paragraph 3(d) are required,
the procedures of this paragraph 3(e) may not be used in lieu of the
procedures required under paragraph 3(d).
(f) Non-Renewal of Agreement. Except as otherwise agreed to in writing by the
parties, this Agreement shall not apply to employment after the end of the
Agreement Term, however, non-renewal of this Agreement will not otherwise
limit or interfere with the benefits which Passione has accrued under any
welfare, pension or other plan as of the end of the Agreement Term.
(g) Termination by Company. OnMoney may terminate Passione's employment
hereunder at any time for any reason, by giving Passione prior Notice of
Termination, which Notice of Termination shall be effective immediately, or
such later time as is specified in such notice. OnMoney shall not be
required to specify a reason for the termination under this paragraph 3(g),
provided that termination of Passione's employment by OnMoney shall be
deemed to have occurred under this paragraph 3(g) only if it is not for
reasons described in paragraph 3(b), 3(c), 3(d), 3(e), or 3(f).
Notwithstanding the foregoing provisions of this paragraph (g), if
Passione's employment is terminated by OnMoney in accordance with this
paragraph (g), and within a reasonable time period thereafter, it is
determined by the Board that circumstances existed which would have
constituted a basis for termination of Passione's employment for Cause in
accordance with paragraph 3(c) (disregarding circumstances which could have
been remedied if notice had been given in accordance with paragraph
3(c)(i)), Passione's employment will be deemed to have been terminated for
Cause in accordance with paragraph 3(c).
(h) Notice of Termination. Any termination of Passione's employment by OnMoney
or Passione (other than a termination pursuant to paragraph 3(a) or
paragraph 3(f)) must be communicated by a written Notice of Termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" means a dated notice which indicates the Date of Termination
(not earlier than the date on which the notice is provided), and which
indicates the specific termination provision in this Agreement relied on
and which sets forth in reasonable detail the facts and circumstances, if
any, claimed to provide a basis for termination of Passione's employment
under the provision so indicated.
(i) Date of Termination. "Date of Termination" means the last day Passione is
employed by OnMoney, provided that Passione's employment is terminated in
accordance with the foregoing provisions of this paragraph 3.
(j) Effect of Termination. If, on the Date of Termination, Passione is a member
of Board of Directors of OnMoney or any of the Subsidiaries, or holds any
other position with
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OnMoney and the Subsidiaries (other than the position described in
paragraph 1(a)), Passione shall resign from all such positions as of the
Date of Termination.
4. Rights and Payments Upon Termination or Change in Control. Passione's
right to payment and benefits under this Agreement for periods after his Date of
Termination shall be determined in accordance with the following provisions of
this paragraph 4:
(a) If Passione's Date of Termination occurs during the Agreement Term for any
reason, OnMoney shall pay to Passione:
(i) Passione's Salary for the period ending on the Date of Termination.
(ii) Payment for unused vacation days, as determined in accordance with
Company policy as in effect from time to time.
(iii) If the Date of Termination occurs after the end of a performance
period and prior to the payment of the performance bonus (as described
in paragraph 2(b)), for the period, Passione shall be paid such bonus
amount at the regularly scheduled time.
(iv) Any other payments or benefits to be provided to Passione by OnMoney
pursuant to any employee benefit plans or arrangements adopted by
OnMoney, to the extent such amounts are due from OnMoney.
Except as may otherwise be expressly provided to the contrary in this
Agreement, nothing in this Agreement shall be construed as requiring
Passione to be treated as employed by OnMoney for purposes of any employee
benefit plan or arrangement following the date of Passione's Date of
Termination.
(b) If Passione's Date of Termination occurs during the Agreement Term under
circumstances described in paragraph 3(a) (relating to Passione's death),
paragraph 3(b) (relating to Passione's being Disabled), paragraph 3(c)
(relating to Passione's termination for Cause), paragraph 3(e) (relating to
Passione's resignation), then, except as otherwise expressly provided in
this Agreement or otherwise agreed in writing between Passione and OnMoney,
OnMoney shall have no obligation to make payments under the Agreement for
periods after Passione's Date of Termination. If Passione's employment with
OnMoney terminates after the end of the Agreement Term, OnMoney shall have
no obligation to make payments for periods after Passione's Date of
Termination.
(c) If Passione's Date of Termination occurs during the Agreement Term under
circumstances described in paragraph 3(d) (relating to Constructive
Discharge) or
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paragraph 3(g) (relating to termination by OnMoney without Cause), then, in
addition to the amounts payable in accordance with paragraph 4(a):
(i) If the termination of employment occurs prior to a Change in Control
(as defined below) Passione shall receive from OnMoney for the
period continuing through the later of (A) the second anniversary of
the Effective Date, or (B) the first anniversary of the Date of
Termination, the Salary amount described in paragraph 2(a), as in
effect on his Date of Termination (the "Payment Period"), in monthly
or more frequent installments as is required under that paragraph,
and the bonus amount described in paragraph 2(b). The determination
of the bonus payable for the performance period in which the Date of
Termination occurs shall be based on actual performance for the
entire period. The bonus payable for any performance period
thereafter shall be at the same rate as the rate determined in
accordance with the preceding sentence; provided, however, that the
bonus for the performance period that includes the last day of the
Payment Period shall be subject to a pro-rata reduction to reflect
the portion of the performance period following such date. Payment,
under this paragraph (i), of any bonus described in paragraph 2(b)
shall be made at the regularly scheduled time for payment of such
amounts to active employees. OnMoney's obligation to make payments
under this paragraph (i) shall cease with respect to periods after
the earlier to occur of the date of Passione's death, or a date, if
any, of the breach by Passione of the provisions of paragraph 7 or
paragraph 8.
(ii) If the Date of Termination of employment occurs within 2 years after
a Change in Control (as defined in Exhibit A hereto) Passione shall
receive from OnMoney for the period continuing through the second
anniversary of the Date of Termination, the Salary amount described
in paragraph 2(a), as in effect on his Date of Termination, in
monthly or more frequent installments as is required under that
paragraph, and the bonus amount described in paragraph 2(b). The
determination of the bonus payable for the performance period in
which the Date of Termination occurs shall be based on actual
performance for the entire period. The bonus payable for any
performance period thereafter shall be at the same rate as the rate
determined in accordance with the preceding sentence; provided,
however, that the bonus for the performance period that includes the
second anniversary of the Date of Termination shall be subject to a
pro-rata reduction to reflect the portion of the performance period
following such anniversary. Payment under this paragraph (ii) of any
bonus described in paragraph 2(b) shall be made at the regularly
scheduled time for payment of such amounts to active employees.
OnMoney's obligation to make payments under this paragraph (ii)
shall cease with respect to periods after the earlier to occur of
the date of Passione's
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death, or a date, if any, of the breach by Passione of the
provisions of paragraph 7 or paragraph 8.
(iii) For such period of that time that Passione 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 health plan, OnMoney shall pay
100% of the premiums necessary to maintain such COBRA continuation
coverage, OnMoney's obligation to make payments under this paragraph
(iv) shall cease with respect to periods after the earlier to occur
of the date of Passione's death, or a date, if any, of the breach by
Passione of the provisions of paragraph 7 or paragraph 8.
(iv) As of the Date of Termination (under this paragraph 4(c)), (A) all
outstanding stock options to purchase shares of OnMoney stock then
held by Passione which are not yet exercisable shall become fully
exercisable and shall remain exercisable for the period as
determined under the terms and condition of the applicable plan,
and (B) with respect to paragraph 2(c), the Election Date shall be
the Date of Termination, and the Ameritrade Option, if selected,
will be fully vested and exercisable for the period as determined
under the terms and conditions of the applicable Ameritrade plan.
(d) Except as may be otherwise specifically provided in an amendment of this
paragraph (d) adopted in accordance with paragraph 13, the Employee's
rights under this paragraph 4 shall be in lieu of any benefits that may be
otherwise payable to or on behalf of Passione pursuant to the terms of any
severance pay arrangement of OnMoney or any Subsidiary or any other,
similar arrangement of OnMoney or any Subsidiary providing benefits upon
involuntary termination of employment.
(e) If Passione's Date of Termination occurs after the end of the Agreement
Term under circumstances described in paragraph 3(f) (relating to the
termination of employment after the end of the Agreement Term) then,
except as otherwise expressly provided in this Agreement, or otherwise
agreed in writing between Passione and OnMoney, OnMoney shall have no
obligation to make payments under the Agreement for periods after
Passione's Date of Termination.
5. Duties on Termination. Subject to the terms and conditions of this
Agreement, during the period beginning on the date of delivery of a Notice of
Termination, and ending on the Date of Termination, Passione shall continue to
perform his duties as set forth in this Agreement, and shall also perform such
services for OnMoney as are necessary and appropriate for a smooth transition to
Passione's successor, if any. Notwithstanding the foregoing provisions of this
paragraph 5, OnMoney may suspend Passione from performing his duties under this
Agreement
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following the delivery of a Notice of Termination providing for Passione's
resignation, or delivery by OnMoney of a Notice of Termination providing for
Passione's termination of employment for any reason; provided, however, that
during the period of suspension (which shall end on the Date of Termination),
Passione shall continue to be treated as employed by OnMoney for other purposes,
and his rights to compensation or benefits shall not be reduced by reason of the
suspension.
6. Mitigation and Set-Off. Passione shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise. OnMoney shall not be entitled to set off against the amounts
payable to Passione under this Agreement any amounts owed to OnMoney by
Passione, any amounts earned by Passione in other employment after termination
of his employment with OnMoney, or any amounts which might have been earned by
Passione in other employment had he sought such other employment.
7. Noncompetition. While he is employed by OnMoney, and for a period of 12
months after termination of Passione's employment with OnMoney for any reason:
(a) Passione shall not, without the express written consent of the Chairman,
be employed by, serve as a consultant to, or otherwise assist or directly
or indirectly provide services to a Competitor (defined below) if: (i) the
services that Passione is to provide to the Competitor are the same as,
or substantially similar to, any of the services that Passione provided to
OnMoney or the Subsidiaries, and such services are to be provided with
respect to any location in which OnMoney or a Subsidiary had material
operations during the 12-month period prior to the Date of Termination,
any location in which OnMoney or a Subsidiary had devoted material
resources to establishing operations during the 12-month period prior to
the Date of Termination, however, both parties agree that the above
geographical limitations shall be interpreted to be any location in the
United States in the event the Competitor generates in excess of 50% of
its gross revenues from its Internet services; or (ii) the trade secrets,
confidential information, or proprietary information (including, without
limitation, confidential or proprietary methods) of OnMoney and the
Subsidiaries to which Passione had access could reasonably be expected
to benefit the Competitor if the Competitor were to obtain access to such
secrets or information. For purposes of this paragraph (a), services
provided by others shall be deemed to have been provided by Passione if
Passione had material supervisory responsibilities with respect to the
provision of such services.
(b) Passione shall not, without the express written consent of the Chairman,
solicit or attempt to solicit any party who is then or, during the
12-month period prior to such solicitation or attempt by Passione was (or
was solicited to become), a customer or supplier of OnMoney, provided that
the restriction in this paragraph (c) shall not apply to any activity on
behalf of a business that is not a Competitor.
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(c) Passione shall not, without the express written consent of the Chairman,
solicit, entice, persuade or induce any individual who is employed by
OnMoney or its Subsidiaries (or was so employed within 90 days prior to
Passione's action) to terminate or refrain from renewing or extending such
employment or to become employed by or enter into contractual relations
with any other individual or entity other than OnMoney or its
subsidiaries, and Passione shall not approach any such employee for any
such purpose or authorize or knowingly cooperate with the taking of any
such actions by any other individual or entity.
(d) Passione shall not, without the express written consent of the Chairman,
directly or indirectly own an equity interest in any Competitor (other
than ownership of 1% or less of the outstanding stock of any corporation
listed on the New York Stock Exchange or the American Stock Exchange or
included in the NASDAQ System).
The term "Competitor" means any enterprise (including a person, firm or
business, whether or not incorporated) during any period in which it is
materially competitive in any way with OnMoney's business as an Internet based
financial services portal or with any other business in which OnMoney or any of
its Subsidiaries were engaged during the 12-month period prior to Passione's
termination of employment and from which OnMoney or its Subsidiary (as
applicable) either generated in excess of 5 percent of its gross revenue or
reflects a financial expenditure in excess of 5 percent of its gross revenue or
reflects a financial expenditure in excess of 5 percent of total expenses in the
prior 12-month period. Nothing in this paragraph 7 or paragraph 8 shall be
construed as limiting Passione's duty of loyalty to OnMoney, or any other duty
he may otherwise have to OnMoney, while he is employed by OnMoney. Nothing in
paragraphs 7, 8 or 9 shall be construed to adversely affect the rights that
OnMoney would possess in the absence of the provisions of such paragraphs.
If at any time any of the provisions of this paragraph 7 shall be determined to
be invalid or unenforceable by reason of being vague or unreasonable as to
duration, area, scope of activity or otherwise, then this paragraph 7 shall be
considered divisible (with the other provisions to remain in full force and
effect) and the invalid or unenforceable provisions shall become and be deemed
to be immediately amended to include only such time, area, scope of activity and
other restrictions, as shall be determined to be reasonable and enforceable by
the court or other body having jurisdiction over the matter, and Employee
expressly agrees that this Agreement, as so amended, shall be valid and biding
as though any invalid or unenforceable provision had not been included herein.
8. Confidential Information. Passione agrees that:
(a) Except as may be required by the lawful order of a court or agency of
competent jurisdiction, except as necessary to carry out his duties to
OnMoney and its Subsidiaries, or except to the extent that Passione has
express authorization from OnMoney, Passione agrees to keep secret and
confidential indefinitely, all Confidential Information, and not
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to disclose the same, either directly or indirectly, to any other person,
firm, or business entity, or to use it in any way.
(b) To the extent that any court or agency seeks to have Passione disclose
Confidential Information, he shall promptly inform OnMoney, and he shall
take such reasonable steps to prevent disclosure of Confidential Information
until OnMoney has been informed of such requested disclosure, and OnMoney
has an opportunity to respond to such court or agency. To the extent that
Passione obtains information on behalf of OnMoney or any of the Subsidiaries
that may be subject to attorney-client privilege as to OnMoney's attorneys,
Passione shall take reasonable steps to maintain the confidentiality of such
information and to preserve such privilege.
(c) Nothing in the foregoing provisions of this paragraph 8 shall be construed
so as to prevent Passione from using, in connection with his employment for
himself or an employer other than OnMoney or any of the Subsidiaries,
knowledge which was acquired by him during the course of his employment with
OnMoney and the Subsidiaries, and which is generally known to persons of his
experience in other companies in the same industry.
(d) For purposes of this Agreement, the term "Confidential Information" shall
include all non-public information (including, without limitation,
information regarding litigation and pending litigation) concerning OnMoney
and the Subsidiaries which was acquired by or disclosed to Passione during
the course of his employment with OnMoney, or during the course of his
consultation with OnMoney following his Date of Termination (regardless of
whether consultation is pursuant to paragraph 9). For purposes of this
Agreement, the term "Confidential Information" shall also include all
non-public information concerning any other company that was shared with
OnMoney or a Subsidiary subject to an agreement to maintain the
confidentiality of such information.
(e) This paragraph 8 shall not be construed to unreasonably restrict Passione's
ability to disclose confidential information in an arbitration proceeding
or a court proceeding in connection with the assertion of, or defense
against any claim of breach of this Agreement in accordance with paragraph
11. If there is a dispute between OnMoney and Passione as to whether
information may be disclosed in accordance with this paragraph (e), the
matter shall be submitted to the arbitrators or the court (whichever is
applicable) for decision.
9. Assistance with Claims. Passione agrees that, for the period beginning
on the Effective Date, and continuing for a reasonable period after Passione's
Date of Termination, Passione will provide reasonable assistance to OnMoney and
the Subsidiaries in defense of any claims that may be made against OnMoney and
the Subsidiaries, and will provide reasonable assistance to OnMoney and the
Subsidiaries in the prosecution of any claims that may be made
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by OnMoney or the Subsidiaries, to the extent that such claims may relate to
services performed by Passione for OnMoney and the Subsidiaries. Passione agrees
to promptly inform OnMoney if he becomes aware of any lawsuits involving such
claims that may be filed against OnMoney or any Subsidiary. OnMoney agrees to
reimburse Passione for all of Passione's reasonable out-of-pocket expenses
associated with such assistance, including travel expenses. For periods after
Passione's employment with OnMoney terminates, OnMoney agrees to provide
reasonable compensation to Passione for such assistance. Passione also agrees to
promptly inform OnMoney if he is asked to assist in any investigation of OnMoney
or the Subsidiaries (or their actions) that may relate to services performed by
Passione for OnMoney or the Subsidiaries, regardless of whether a lawsuit has
then been filed against OnMoney or the Subsidiaries with respect to such
investigation. For any required assistance under this paragraph, OnMoney shall
take into consideration Passione's then current employment situation and all
other relevant personal factors as presented by Passione in order to determine
what is reasonable in the given circumstances.
10. Representation of Passione. Passione represents that he is not now a
party to, and has never been a party to, any non-competition agreement or other
agreement with any party (other than OnMoney), restricting or purporting to
restrict Passione's right to perform any services, whether or not such
agreement is applicable to Passione's performance of services for OnMoney under
this Agreement, except for any such agreement a true and complete copy of which
Passione has delivered to OnMoney together with evidence of its expiration or
evidence of the other party's irrevocable waiver of its provisions restricting
or purporting to restrict Passione's right to perform services for OnMoney as
provided herein.
11. Equitable Remedies. Passione acknowledges that OnMoney would be
irreparably injured by a violation of paragraph 7 or 8, and he agrees that
OnMoney, in addition to any other remedies available to it for such breach or
threatened breach, shall be entitled to a preliminary injunction, temporary
restraining order, or other equivalent relief, restraining Passione from any
actual or threatened breach of either paragraph 7 or paragraph 8. If a bond is
required to be posted in order for OnMoney to secure an injunction or other
equitable remedy, the parties agree that said bond need not be more than a
nominal sum.
12. Nonalienation. The interests of Passione under this Agreement are not
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors of Passione or
Passione's beneficiary.
13. Amendment. This Agreement may be amended or canceled only by mutual
agreement of the parties in writing without the consent of any other person. So
long as Passione lives, no person, other than the parties hereto, shall have
any rights under or interest in this Agreement or the subject matter hereof.
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14. Applicable Law. The provisions of this Agreement shall be construed in
accordance with the laws of the State of New York, without regard to the
conflict of law provisions of any state. All disputes shall be arbitrated or
litigated (whichever is applicable) in White Plains, N.Y.
15. Severability. The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted (but only to the extent that
such provision cannot be appropriately reformed or modified).
16. Waiver of Breach. No waiver by any party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party of any similar or dissimilar provisions and conditions at the same or any
prior or subsequent time. The failure of any party hereto to take any action by
reason of such breach will not deprive such party of the right to take action at
any time while such breach continues.
17. Successors. This Agreement shall be binding upon, and inure to the
benefit of, OnMoney and its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of OnMoney's assets and business, and the successor
shall be substituted for OnMoney under this Agreement.
18. Notices. Notices and all other communications provided for in this
Agreement shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid, or sent
by facsimile or prepaid overnight courier to the parties at the addresses set
forth below (or such other addresses as shall be specified by the parties by
like notice). Such notices, demands, claims and other communications shall be
deemed given:
(a) in the case of delivery by overnight service with guaranteed next day
delivery, the next day or the day designated for delivery;
(b) in the case of certified or registered U.S. mail, five days after deposit
in the U.S. mail; or
(c) in the case of facsimile, the date upon which the transmitting party
received confirmation of receipt by facsimile, telephone or otherwise;
provided, however, that in no event shall any such communications be deemed to
be given later than the date they are actually received. Communications that
are to be delivered by the U.S. mail or by overnight service are to be
delivered to the addresses set forth below:
to OnMoney
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OnMoney Financial Services Corp.
C/O Ameritrade Holding Corporation
0000 X. 000xx Xxxxxx
Xxxxx, XX 00000
or to Passione:
Xxxxxxx Xxxxxxxx
000 Xxx Xxxxxxxx Xxxx
Xxxxxxx Xxxxxxxx, XX 00000
All notices to OnMoney shall be directed to the Chairman of Ameritrade, with a
copy to the Secretary of Ameritrade. Each party, by written notice furnished to
the other party, may modify the applicable delivery address, except that notice
of change of address shall be effective only upon receipt.
19. Arbitration of All Disputes. Any controversy or claim arising out of or
relating to this Agreement (or the breach thereof) shall be settled by final,
binding and non-appealable arbitration in White Plains, NY by one arbitrator.
Except as otherwise expressly provided in this paragraph 19, the arbitration
shall be conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association (the "Association") then in effect. If the
parties cannot agree on the arbitrator within 30 days of the request for
arbitration, then the arbitrator shall be appointed by the Association. This
paragraph 19 shall not be construed to limit OnMoney's right to obtain relief
under paragraph 11 with respect to any matter or controversy subject to
paragraph 11, and, pending a final determination by the arbitrator with respect
to any such matter or controversy, OnMoney shall be entitled to obtain any such
relief by direct application to a court of law, without being required to first
arbitrate such matter or controversy. Any and all proceedings, hearings,
findings or any other record of a dispute under this paragraph 19 shall be
private and shall be held in the strictest confidence of all parties so
involved, including but not limited to the parties to this Agreement and any
appointed arbitrators.
20. Survival of Agreement. Except as otherwise expressly provided in this
Agreement, the rights and obligations of the parties to this Agreement shall
survive the termination of Passione's employment with OnMoney.
21. Entire Agreement. Except as otherwise noted herein or in any separation
agreement subsequently entered into by Passione and OnMoney, this Agreement,
including any Exhibit(s) attached hereto, constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes all
prior and contemporaneous agreements, if any, between the parties relating to
the subject matter hereof.
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22. Prior Agreements. Passione represents that, he has not signed, and is
not currently subject to, any written agreement or policy that restricts his
ability to be employed by OnMoney, to compete with a former employer, or to use
information, and that his employment by OnMoney will not violate the terms of
any policy of any prior employer of Passione regarding competition or
confidentiality.
IN WITNESS THEREOF, Passione has hereunto set his hand, and OnMoney has
caused these presents to be executed in its name and on its behalf, and its
corporate seal to be hereunto affixed, all as of the day and year first above
written.
/s/ XXXXXXX XXXXXXXX
---------------------------------------
Xxxxxxx Xxxxxxxx
OnMoney Financial Services Corp.
By /s/ XXXX X. XXXXXXXX
------------------------------------
Its Chairman and CEO
-----------------------------------
ATTEST:
--------------------
(Seal)
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Exhibit A
Definition of Change in Control
For purposes of the Agreement, a "Change in Control" shall mean the
earliest to occur of any one of the following events:
(1) any "Person", as such term is used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than
OnMoney, Passione, any corporation owned, directly or indirectly, by the
stockholders of OnMoney in substantially the same proportions as their
ownership of stock of OnMoney, and any trustee or other fiduciary holding
securities under an employee benefit plan of OnMoney), becomes the
"beneficial owner" (as defined in Rule 13d-3 promulgated under the Exchange
Act), of 30% or more of the combined voting power of OnMoney's then
outstanding securities having the right to vote for the election of
directors ("Voting Stock");
(2) the majority of the Board of Directors of OnMoney (the "Board") does not
consist of individuals who are Incumbent Directors, which term means the
members of the Board on the date of this Agreement; provided that any person
becoming a director subsequent to such date whose election or nomination for
election was supported by three-quarters of the directors who then comprised
the Incumbent Directors shall be considered to be an Incumbent Director;
(3) OnMoney adopts any plan of liquidation for the distribution of all or
substantially all of its assets;
(4) OnMoney merges with or into another company, or all or substantially all of
the assets or business of OnMoney is disposed of pursuant to a merger,
consolidation or other transaction (unless the shareholders of OnMoney
immediately prior to such merger, consolidation or other transaction
beneficially own, directly or indirectly, in substantially the same
proportion as they owned the Voting Stock of OnMoney, all of the Voting
Stock or other ownership interest of the entity or entities, if any, that
succeed to the business of OnMoney); or
(5) OnMoney combines with any other company and is the surviving corporation
but, immediately after the combination, the shareholders of OnMoney
immediately prior to the combination hold, directly or indirectly, 50% or
less of the Voting Stock of the combined company (there being excluded from
the number of shares held by such shareholders, but not from the Voting
Stock of the combined company, any shares received by affiliates of such
other company in exchange for stock of such other company).
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Notwithstanding the forgoing, a Change in Control shall not include an initial
public offering of OnMoney's securities (an "Initial Public Offering") or any
associated changes due to the Initial Public Offering which would otherwise
constitute a Change in Control based on the above definition, if such
associated changes are directly related to, in contemplation of or a result of
the Initial Public Offering.
Once a Change in Control has occurred, no subsequent event shall be considered
a Change in Control for purposes of this Agreement.
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ADDENDUM TO
EMPLOYMENT AGREEMENT
BETWEEN
XXXXX XXXXXXXX
AND
ONMONEY FINANCIAL SERVICES CORP.
WHEREAS, Xxxxxxx Xxxxxxxx ("Passione") and OnMoney Financial Services
Corp. ("OnMoney"), made and entered into as of August 2, 1999 (the "Effective
Date") an employment agreement (the "Agreement");
WHEREAS, the parties desire to have this addendum attached to and made
part of the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants of the parties,
the following is made part of the Agreement:
1. Paragraph 18. Notices. shall be modified in its entirety to read as
follows:
"Notices. Notices and all other communications provided for in this
Agreement shall be in writing and shall be delivered personally or sent
by registered or certified mail, return receipt requested, postage
prepaid, or sent by facsimile or prepaid overnight courier to the parties
at the addresses set forth below (or such other addresses as shall be
specified by the parties by like notice). Such notices, demands, claims
and other communications shall be deemed given:
1. in the case of delivery by overnight service with guaranteed next
day delivery, the next day or the day designated for delivery;
2. in the case of certified or registered U.S. mail, five days after
deposit in the U.S. mail; or
3. in the case of facsimile, the date upon which the transmitting party
received confirmation of receipt by facsimile, telephone or otherwise;
provided, however, that in no event shall any such communications be
deemed to be given later than the date they are actually received.
Communications that are to be delivered by the U.S. mail or by overnight
service are to be delivered to the addresses set forth below:
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to OnMoney
OnMoney Financial Services Corp.
C/O Chairman of the Board of Directors
0000 X. 000xx Xxxxxx
Xxxxx, XX 00000
or to Passione:
Xxxxxxx Xxxxxxxx
000 Xxx Xxxxxxxx Xxxx
Xxxxxxx Xxxxxxxx, XX 00000
Prior to an Initial Public Offering, all notices to OnMoney shall be
directed to the attention of the Chairman of the Board of Directors of
Ameritrade, with a copy to the Secretary of Ameritrade. Subsequent to an
Initial Public Offering, all notices to OnMoney shall be directed to the
attention of the Chairman of the Board of Directors of OnMoney, with a
copy to the Secretary of OnMoney. Each party, by written notice furnished
to the other party, may modify the applicable delivery address, except
that notice of change of address shall be effective only upon receipt."
2. With respect to the Ameritrade Option, as provided for in paragraph
2(c)(iii) of the Agreement, the number of shares subject to purchase,
which was set at 25,000, shall be adjusted at the time of grant to
reflect the stock split that was effective for shareholders of record
as of June 11, 1999.
This addendum shall be effective as of the Effective Date of the Agreement.
/s/ XXXXXXX XXXXXXXX
--------------------------------
Xxxxxxx Xxxxxxxx
OnMoney Financial Services Corp.
By /s/ XXXX X. XXXXXXXX
-------------------------------
Its Chairman & CEO
-------------------------------
