EXHIBIT 10.1
AMERITRADE HOLDING CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") between
AMERITRADE HOLDING CORPORATION, a Delaware corporation (the "Company") and
Xxxxxx X. Xxxxxxxx (the "Executive"), is made effective February 1, 2002 (the
"Effective Date").
The Executive is employed as Executive Vice President and Chief
Strategy Officer.
The Company and the Executive desire to set forth in this Agreement,
the terms, conditions and obligations of the parties (which have been in
discussion since June 11, 2001) with respect to such employment and this
Agreement is intended by the parties to supersede all previous agreements and
understandings, whether written or oral, concerning employment with the Company
and with any subsidiary of the Company.
Accordingly, the Company and the Executive agree as follows:
1. EMPLOYMENT. The Company will continue to employ the Executive as
Executive Vice President and Chief Strategy Officer, 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 June 30, 2003, 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 $300,000, payable in accordance with the Company's
policies. The Executive's annual base salary will be reviewed by the
Company for possible increase (but not decrease) at least once in each
calendar year through the Term of this Agreement.
(b) Annual Incentive. The Executive will be entitled to participate
in the Company's Management Incentive Plan (or any successor short-term
incentive plan or program) (the "MIP Plan") for the Company's fiscal
year 2002 and subsequent fiscal years during the Term in accordance
with the terms and conditions of the MIP Plan with
a target bonus of 100% of the Executive's annual base salary for each
fiscal year (the "Target Bonus"). The Executive's Target Bonus for
periods subsequent to the Company's fiscal year 2002 during the Term
will be determined by the Compensation Committee of the Board of
Directors of the Company (the "Compensation Committee") in its
discretion and based upon performance criteria determined for each
fiscal year by the Compensation Committee in its sole discretion but
shall in no event be less than 100% of the Executive's annual base
salary for such subsequent period.
(c) Long-Term Incentive Plan. The Executive will be entitled to
participate in the Company's 1996 Long-Term Incentive Plan (or any
successor long-term incentive plan or program) (the "LTIP"). Any awards
made under the LTIP will be made at the sole discretion of the
administrator of the LTIP, or the administrator's designee, and will be
subject to the terms and conditions of the LTIP and the applicable
award agreement. The Executive will be eligible for an annual option
award, determined by the measurements established by the Compensation
Committee from time to time, with a target of $350,000 in present
value, at the same time and contingent upon options being granted to
other Company executives by the Compensation Committee. Number of
options will be determined using the same valuation methodology as
other Company executives' grants.
(d) Deferred Compensation Program. The Executive will be eligible to
participate in the Company's Executive Deferred Compensation Program
(or any successor deferred compensation program) (the "Deferred
Compensation Program") in accordance with the terms and conditions of
the Deferred Compensation Program.
(e) Benefits and Perquisites. The Executive will also receive such
benefits and perquisites (the "Benefits") which are made available
generally to other senior executives of the Company. All such Benefits
will be provided in such amounts as may be determined from time to time
by the Company in its discretion and pursuant to the terms of the plan
documents governing such Benefits.
4. NON-COMPETITION, NON-SOLICITATION AND NON-HIRE PROVISIONS. The
Executive agrees that:
(a) During the Term and for a period of 12 months thereafter
(collectively, the "Restricted Period"), the Executive will not
(without the written consent of the Chief Executive Officer and the
Chairman of the Board) engage or participate in any business within the
United States (as an owner, partner, stockholder, holder of any other
equity interest, or financially as an investor or lender, or in any
capacity calling for the rendition of personal services or acts of
management, operation or control) which is engaged in any activities
and for any business competitive with any of the primary businesses
conducted or formally proposed to be conducted by the Company or any of
its Affiliates (as defined below) during the 12-month period prior to
the Date of Termination (as defined in Section 6) or, if the Executive
has been employed for less than a 12-month period, the period in which
the Executive was employed by the Company ("Competitive Business"). For
purposes of this Agreement, the term "primary businesses" is defined as
(i) an online brokerage business, or (ii) a business function, product
or service for which the Executive
was responsible during her employment with the Company during the Term.
Notwithstanding the foregoing, the Executive may own securities of a
Competitive Business so long as the securities of such corporation or
other entity are listed on a national securities exchange or on the
Nasdaq National Market and the securities owned directly or indirectly
by the Executive do not represent more than one percent of the
outstanding securities of such corporation or other entity;
(b) During the Restricted Period neither the Executive, nor any
business in which the Executive may engage or participate in, will
directly or indirectly (i) induce any customer or vendor of the Company
or of corporations or businesses which are directly or indirectly
controlled by the Company (collectively, the "Affiliates") to patronize
any Competitive Business, (ii) canvass, solicit or accept any business
from any customer of the Company or any of its Affiliates which
business is of a type that is similar to the business received by the
Company or Affiliate from the customer, (iii) request or advise any
customer or vendor of the Company or any of its Affiliates to withdraw,
curtail or cancel such customer's or vendor's business with the Company
or any of its Affiliates, or (iv) compete with the Company or any of
its Affiliates in merging with or acquiring any other company or
business (whether by a purchase of stock or other equity interests, or
a purchase of assets or otherwise) which is a Competitive Business;
(c) During the Restricted Period, neither the Executive nor any
business in which the Executive may engage or participate in will (i)
hire, solicit or attempt to hire any employee or contractor of the
Company or any of its Affiliates or (ii) encourage any employee or
contractor of the Company or any of its Affiliates to terminate
employment or contractual arrangements. For purposes of this Agreement,
"employee" includes current employees as well as anyone employed by the
Company or any of its Affiliates within the prior six months from the
Executive's Date of Termination (as defined in Section 6); and
(d) In the event that any of the provisions of this Section 4 should
ever be deemed to exceed the time, geographic or occupational
limitations permitted by applicable laws, then such provisions will and
are hereby reformed to the maximum time, geographic or occupational
limitations permitted by applicable law.
5. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY.
(a) Except as may be required by law, or except to the extent
required to perform the Executive's duties and responsibilities
hereunder, the Executive will keep secret and confidential indefinitely
all non-public confidential information (including, without limitation,
information regarding cost of new accounts, activity rates of different
market niche customers, advertising results, technology (hardware and
software), architecture, discoveries, processes, algorithms, maskworks,
strategies, intellectual properties, customer lists and other customer
information) concerning any of the Company and its Affiliates which was
acquired by or disclosed to the Executive during the course of the
Executive's employment with the Company ("Confidential Information")
and not use in any manner or disclose the same, either directly or
indirectly, to any other person, firm or business entity.
(b) At the end of the Term or at the Company's earlier request, the
Executive will promptly return to the Company any and all records,
documents, physical property, information, computer disks, drives or
other materials relative to the business of any of the Company and its
Affiliates obtained by the Executive during course of employment with
the Company and not keep any copies thereof.
(c) The Executive acknowledges and agrees that all right, title and
interest in inventions, discoveries, improvements, trade secrets,
developments, processes and procedures made by the Executive, in whole
or in part, or conceived by the Executive either alone or with others,
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 disclose Confidential Information if required by a
subpoena or court or administrative order.
6. Termination.
(a) Date of Termination. For purposes of this Agreement, "Date of
Termination" is defined as (i) if the Executive's employment is
terminated by reason of death or disability, the date of such death or
disability; (ii) if the Executive's employment is terminated by the
Executive for reasons other than Good Reason (as defined below), the
date specified in the notice of termination, (iii) if the Executive's
employment is terminated by the Executive for Good Reason (as defined
below), the date of the Company's receipt of the notice of termination
and (iv) if the Executive's employment is terminated by the Company,
the date of the Executive's receipt of the notice of termination or any
later date specified therein.
(b) Payments upon Termination. The Company will pay to the Executive
in a lump sum in cash as soon as practicable following the Date of
Termination 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 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 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(f), it
will provide written notice of such termination to the Executive, which
notice will include the date on which the Executive's employment will
terminate. The Executive may also terminate employment with the Company
for Good Reason by delivering written notice to the Company within 90
days of the occurrence of an event qualifying as Good Reason, but in
any event prior to the end of the Term. "Good Reason" is defined as one
of the following events that occurs without the written consent of the
Executive:
(i) a material violation by the Company of the terms of this
Agreement which continues for 30 days following receipt of
notice from the Executive specifying such violation;
(ii) a material reduction in the Executive's duties, reporting
relationship or responsibilities which results in or
reflects a material reduction of the scope or importance
of the Executive's position, excluding for this purpose
(1) an isolated, unsubstantial or inadvertent action not
taken in bad faith and remedied by the Company after
receipt of notice given by the Executive; (2) any
reorganization of the Executive Management Team by the
Company's CEO which results in a change in the Executive's
position with no decrease in base salary for the
Executive, no change in participation as a member of the
Executive Management Team, and whose position still
reports to the Company's CEO, so long as Executive's
position has a status substantially equal to, and duties
and responsibilities substantially the same as, the
position of Executive Vice President, Chief Strategy
Officer.
(iii) a reduction in the Executive's then current annual base
salary; or Target Bonus.
or
(iv) non-renewal of this Agreement by the Company by June 30,
2003, the end of the "Term" (as provided in Section 2
above) upon substantially the same terms and conditions as
are set forth herein.
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
$300,000), payable on regularly scheduled paydays for a period
equal to the greater of (A) 12 months or (B) the period from the
Date of Termination through the end of the term (such period of
payment to be referred to as the "Severance Period");
(y) the Executive will receive an amount equal to the Target Bonus
under the MIP Plan, 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 $300,000), payable pro-rata over
the course of the Additional Restricted Period on regularly scheduled
paydays. The Non-Competition Payments shall be reduced by any payments
due to the Executive under any other severance provision described in
Section 6 hereof and Executive agrees to execute and deliver the
release described in Section 13 below.
(g) Termination by the Company for Cause. The Company will have a
right to terminate the Executive's employment under this Agreement
prior to the expiration of the Term for reason of Cause. "Cause" means:
(i) the failure by the Executive to substantially perform 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;
(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 sale or disposition by the Company of all or
substantially all of the assets of the Company (or any
transaction having a similar effect); or
(iii) the consummation of a merger or consolidation of the
Company with any other corporation other than (1) a merger
or consolidation which would result in the voting
securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the combined
voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such
merger or consolidation or (2) a merger or consolidation
effected to implement a recapitalization of the Company
(or similar transaction).
(b) Subject to the Executive's compliance with Sections 4 and 5 and
subject to the Executive's execution of the General Release and
Cooperation Agreement described in Section 13, if following a Change of
Control, the Executive's employment is terminated by the Company
without Cause or is terminated by the Executive for Good Reason, the
amount due to the Executive in Sections 6(e)(x) and 6(e)(y) will be
paid in a lump sum within 30 days following such termination of
employment in lieu of payment at such times described in Sections
6(e)(x) and 6(e)(y).
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.
11. SUCCESSORS AND ASSIGNS. This Agreement is personal to the Executive
and without the prior written consent of the Company the Executive's obligations
under this Agreement will not be assignable by the Executive. This Agreement
will inure to the benefit of and be binding upon the Company and its successors
and assigns.
12. INDEMNIFICATION. The Executive will be eligible for indemnification
as provided in the Company's Articles of Incorporation or Bylaws or pursuant to
other agreements in effect as of the effective date of this Agreement. In
addition, the Company will maintain directors' and officers' liability insurance
in effect and covering acts and omissions of the Executive, during the Term and
for a period of six years thereafter, on terms customary for companies that are
similar to the Company.
13. GENERAL RELEASE AND COOPERATION AGREEMENT. Notwithstanding anything
in Section 6 or Section 7 to the contrary and in consideration therefor,
severance benefits thereunder will only become payable by the Company if the
Executive executes and delivers to the Company a General Release and Cooperating
Agreement on or after the date of written notice of termination of Executive's
employment and in substantially the form attached as an example in Exhibit A
hereof. The terms of the General Release and Cooperating Agreement will be
subject to the terms of the Executive Employment Agreement.
14. NOTICE. Any notice required or permitted to be given under this
Agreement will be in writing, signed by the party or parties giving or making
the same and will be served on the person or persons for whom it was intended or
who should be advised or notified, by Federal Express or other similar overnight
service. If the notice is sent to the Executive, the notice should be sent to
the address listed on the signature page of this Agreement or to such other
address furnished by the Executive in writing in accordance with this Agreement.
If notice is sent to the Company, the notice should be sent to:
Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000-0000
Attention: Chief Administrative Officer,
with a copy to General Counsel
or to such other address as furnished by the Company in writing in accordance
with this Agreement. Notice and communications will be effective when actually
received by the addressee.
15. MISCELLANEOUS.
(a) This Agreement is subject to and governed by the laws of the
State of Nebraska, without reference to principles of conflict of laws.
(b) The failure to insist upon strict compliance with any provision
of this Agreement will not be deemed to be a waiver of such provision
or any other provision or right of this Agreement.
(c) This Agreement may not be modified except by an agreement in
writing executed by the parties to this Agreement.
(d) The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of any other
provision of this Agreement.
(e) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as may be required to be
withheld pursuant to any applicable law or regulation.
(f) This Agreement terminates and supersedes any and all prior
employment agreements or understandings, written or oral, with the
Executive and the Company or any of its subsidiaries or Affiliates. The
obligations of the Executive under Sections 4 and 5 shall survive
termination of this Agreement.
(g) In the event of any dispute or controversy between the parties,
the non-prevailing party will pay the attorneys fees, costs and
expenses of the prevailing party.
(h) Any controversy, claim or dispute arising out of or relating to
this Agreement or breach thereof will be settled by final, binding and
nonappealable arbitration (excluding, however, any dispute, controversy
or claim arising out of Sections 4 or 5 hereof) in Omaha, Nebraska by
three arbitrators. Except as otherwise expressly provided in this
subsection (h), the arbitration shall be conducted in accordance with
the rules of the American Arbitration Association (the "Association")
then in effect. One of the arbitrators shall be appointed by the
Company, one shall be appointed by the Executive and the third shall be
appointed by the first two arbitrators. If the first two arbitrators
cannot agree on the third arbitrator within 30 days of the appointment
of the second arbitrator, then the Association shall appoint the third.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMERITRADE HOLDING CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Chief Executive Officer
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Executive's Signature
/s/ Xxxxxx X. Xxxxxxxx 4/5/02
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Xxxxxx X. Xxxxxxxx
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Xxxxxx
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Xxxx, Xxxxx and Zip Code
