EXHIBIT 10.1
SEPARATION AND RELEASE OF CLAIMS AGREEMENT
RECITALS
This Separation and Release of Claims Agreement ("Agreement") is made by
and between Xxxxx X. Xxxxx ("Employee") and TD Ameritrade Holding Corporation
("Company") (collectively referred to as the "Parties"):
WHEREAS, the Company and Employee have entered into an Employment Agreement
dated May 23, 2006 (the "Employment Agreement");
WHEREAS, the Company and Employee have entered into a Stock Option
Agreement, dated April 7, 2003, (the "Stock Option Agreement") pursuant to which
the Employee was eligible to receive the award of stock options under the
Ameritrade Holding Corporation 1996 Long-Term Incentive Plan (the "Plan");
WHEREAS, the Company and Employee have entered into Performance Restricted
Stock Unit Agreements, dated March 10, 2006 and October 25, 2006, (collectively
the "Restricted Stock Unit Agreements) pursuant to which the Employee was
eligible to receive restricted stock units under the Plan;
WHEREAS, Employee was employed by the Company;
WHEREAS, Employee's employment with Company shall terminate on or about
April 1, 2007 (the "Termination Date");
WHEREAS, the Parties, and each of them, wish to resolve any and all
disputes, claims, complaints, grievances, charges, actions, petitions and
demands that the Employee may have against the Company as defined herein,
including, but not limited to, any and all claims arising or in any way related
to Employee's employment with, or separation from, the Company;
NOW THEREFORE, in consideration of the promises made herein, the Parties
hereby agree as follows:
COVENANTS
1. Consideration and Employee Benefits.
(a) Accrued Payments. The Company agrees to pay Employee, pursuant to
Section 7 of the Employment Agreement, an amount equal to Twelve Thousand Three
Hundred Sixty One Dollars and 60/100 ($12,361.60) in respect of (i) Employee's
accrued but unpaid salary and (ii) pay for accrued but unused vacation, which
has accrued through the Termination Date. The Company also agrees to pay the
Employee for any unreimbursed business expenses required to be reimbursed
to Employee pursuant to the Company's normal and customary business expense
reimbursement procedures.
(b) Cash Payment. The Company agrees to pay Employee pursuant to
Section 12(g)(v) of the Employment Agreement, an amount equal to three hundred
and seventy-five thousand dollars ($375,000). Payment shall be made in a single
lump sum cash payment on the first regular payroll date following the Effective
Date. Following the Effective Date Employee shall not be entitled to the accrual
of any additional payroll, bonus or other cash compensation.
(c) Stock Options and Restricted Stock Units. The Parties agree that,
as consideration for the execution of this Agreement, the Stock Option Agreement
shall be considered amended, as appropriate, to permit Employee the ability to
exercise stock options which were outstanding and vested as of the Termination
Date at any time during the period from the Termination Date and ending December
31, 2007. In addition, with respect to those unvested equity awards outstanding
as of the Termination Date under the Restricted Stock Unit Agreements, Employee
shall cease vesting in such outstanding awards effective as of the Termination
Date and all unvested units shall be forfeited as of the Termination Date.
Employee acknowledges that the specific vesting of his awards pursuant to the
Stock Option Agreement and/or Restricted Stock Unit Agreements, as of the
Termination Date, is reflected on the attached Schedule A, and that no
additional shares subject to such awards shall become vested after the
Termination Date. All shares shall continue to be subject to all other terms and
conditions of the Stock Option Agreement and/or Restricted Stock Unit
Agreements.
(d) Benefits. Employee (and any eligible dependents) shall be eligible
for continued health benefits pursuant to COBRA continuation coverage (as
described in Section 4980B of the Internal Revenue Code of 1986, as amended (the
"Code"). The COBRA continuation coverage, if elected by the Employee pursuant to
the policies and procedures of the Company, shall be the sole expense of the
Employee. Employee's participation in all other benefits and incidents of
employment shall cease on the Termination Date. Employee shall cease accruing
employee benefits, including, but not limited to, vacation time and paid time
off, as of the Termination Date.
2. Confidential Information. Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of Section 10 of the
Employee's Employment Agreement. Employee shall return all of the Company's
property and confidential and proprietary information in his possession to the
Company on the Effective Date of this Agreement.
3. Payments. Employee acknowledges and represents that the Company has paid
all salary, wages, bonuses, accrued vacation, commissions and any and all other
benefits due to Employee once the above noted payments and benefits are
received.
4. Release of Claims. Employee agrees that the foregoing consideration and
the Company's obligations under Section 18(b) represent settlement in full of
all outstanding obligations owed to Employee by the Company and its officers,
managers, supervisors, agents and employees. Employee, on his own behalf, and on
behalf of his respective heirs, family members, executors, agents, and assigns,
hereby fully and forever releases the Company and its officers, directors,
employees, agents, investors, shareholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns,
from, and agree not to xxx concerning, any
claim, duty, obligation or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, that Employee may
possess arising from any omissions, acts or facts that have occurred up until
and including the Effective Date of this Agreement including, without
limitation:
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Employee's right
to purchase, or actual purchase of shares of stock of the Company, including,
without limitation, any claims for fraud, misrepresentation, breach of fiduciary
duty, breach of duty under applicable state corporate law, and securities fraud
under any state or federal law;
(c) any and all claims under the law of any jurisdiction including,
but not limited to, wrongful discharge of employment; constructive discharge
from employment; termination in violation of public policy; discrimination;
breach of contract, both express and implied; breach of a covenant of good faith
and fair dealing, both express and implied; promissory estoppel; negligent or
intentional infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with contract or
prospective economic advantage; unfair business practices; defamation; libel;
slander; negligence; personal injury; assault; battery; invasion of privacy;
false imprisonment; and conversion;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit Protection
Act; the Massachusetts Fair Employment Practice Act;
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination;
(g) any claim for any loss, cost, damage, or expense arising out of
any dispute over the non-withholding or other tax treatment of any of the
proceeds received by Employee as a result of this Agreement; and
(h) any and all claims for attorneys' fees and costs.
The Company and Employee agree that the release set forth in this section
shall be and remain in effect in all respects as a complete general release as
to the matters released. This release does not extend to any obligations
incurred under this Agreement.
Employee acknowledges and agrees that any breach of any provision of this
Agreement shall constitute a material breach of this Agreement and shall entitle
the Company immediately to recover and cease the severance benefits provided to
Employee under this Agreement.
5. Acknowledgement of Waiver of Claims Under ADEA. Employee acknowledges
that he is waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Employee acknowledges that the
consideration given for this waiver and release Agreement is in addition to
anything of value to which Employee was already entitled. Employee further
acknowledges that he has been advised by this writing that:
(a) he should consult with an attorney prior to executing this
Agreement;
(b) he has up to twenty-one (21) days within which to consider this
Agreement;
(c) he has seven (7) days following his execution of this Agreement to
revoke this Agreement;
(d) this Agreement shall not be effective until the revocation period
has expired; and,
(e) nothing in this Agreement prevents or precludes Employee from
challenging or seeking a determination in good faith of the validity of this
waiver under the ADEA, nor does it impose any condition precedent, penalties or
costs for doing so, unless specifically authorized by federal law.
6. Unknown Claims. The Parties represent that they are not aware of any
claim by either of them other than the claims that are released by this
Agreement. Employee acknowledges that he has been advised by legal counsel and
is familiar with the principle that a general release does not extend to claims
which the releasor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected his
settlement with the releasee. Employee, being aware of said principle, agrees to
expressly waive any rights Employee may have to that effect, as well as under
any other statute or common law principles of similar effect.
7. No Pending or Future Lawsuits. Employee represents that he has no
lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. Employee also represents that he does not intend to bring any claims on
his own behalf or on behalf of any other person or entity against the Company or
any other person or entity referred to herein.
8. Application for Employment. Employee understands and agrees that, as a
condition of this Agreement, he shall not be entitled to any employment with the
Company, its subsidiaries, or any successor, and he hereby waives any right, or
alleged right, of employment or re-employment with the Company, its subsidiaries
or related companies, or any successor.
9. Confidentiality. The Parties acknowledge that Employee's agreement to
keep the terms and conditions of this Agreement confidential was a material
factor on which all parties relied in entering into this Agreement. Employee
hereto agrees to use his best efforts to maintain in confidence: (i) the
existence of this Agreement, (ii) the contents and terms of this Agreement,
(iii) the consideration for this Agreement, and (iv) any allegations relating to
the Company or its officers or employees with respect to Employee's employment
with the Company, except as otherwise
provided for in this Agreement (hereinafter collectively referred to as
"Settlement Information"). Employee agrees to take every reasonable precaution
to prevent disclosure of any Settlement Information to third parties, and agrees
that there shall be no publicity, directly or indirectly, concerning any
Settlement Information. Employee agrees to take every precaution to disclose
Settlement Information only to those attorneys, accountants, governmental
entities, and family members who have a reasonable need to know of such
Settlement Information. The Parties agree that if Company proves that Employee
breached this Confidentiality provision, it shall be entitled to an award of its
costs spent enforcing this provision, including all reasonable attorneys' fees
associated with the enforcement action, without regard to whether the Company
can establish actual damages from the breach by Employee.
10. No Cooperation. Employee agrees he shall not act in any manner that
might damage the business of the Company. Employee agrees that he shall not
counsel or assist any attorneys or their clients in the presentation or
prosecution of any disputes, differences, grievances, claims, charges, or
complaints by any third party against the Company and/or any officer, director,
employee, agent, representative, shareholder or attorney of the Company, unless
under a subpoena or other court order to do so. Employee further agrees both to
immediately notify the Company upon receipt of any court order, subpoena, or any
legal discovery device that seeks or might require the disclosure or production
of the existence or terms of this Agreement, and to furnish, within three (3)
business days of its receipt, a copy of such subpoena or legal discovery device
to the Company.
11. Non-Disparagement. Employee agrees to not knowingly disparage,
criticize, or otherwise make any derogatory statements regarding the Company,
its directors, or its officers at anytime after the Termination Date. The
Company will instruct its officers and directors to not knowingly disparage,
criticize, or otherwise make any derogatory statements regarding Employee. All
inquiries by potential future employers of Employee shall be directed to the
Company's Human Resources Department. Upon inquiry, the Company shall only state
the following: Employee's last position and dates of employment.
12. Non-Solicitation. Employee agrees to comply with the non-solicitation
provisions of Section 9(b) of the Employee's Employment Agreement for the one
year restricted period provided by Section 12(g)(v) of the Employment Agreement
(the "Restricted Period").
13. Non-Competition. Employee agrees to comply with the non-competition
provisions of Section 9(b) of the Employee's Employment Agreement for the
Restricted Period.
14. No Admission of Liability. The Parties understand and acknowledge that
this Agreement constitutes a compromise and settlement of disputed claims. No
action taken by the Parties hereto, or either of them, either previously or in
connection with this Agreement shall be deemed or construed to be: (a) an
admission of the truth or falsity of any claims heretofore made or (b) an
acknowledgment or admission by either party of any fault or liability whatsoever
to the other party or to any third party.
15. No Knowledge of Wrongdoing. Employee represents that he has no
knowledge of any wrongdoing involving improper or false claims against a federal
or state governmental agency, or any other wrongdoing that involves Employee or
other present or former Company employees. The Company represents that its
General Counsel does not have any current and actual knowledge of any facts or
circumstances relating to Employee's employment with the Company that would
constitute
wrongdoing by the Employee or form the basis for any claim against Employee by
the Company or any governmental authority.
16. Tax Consequences. The Company makes no representations or warranties
with respect to the tax consequences of the payment of any sums to Employee
under the terms of this Agreement. Employee agrees and understands that he is
responsible for payment, if any, of local, state and/or federal taxes on the
sums paid hereunder by the Company and any penalties or assessments thereon.
Employee further agrees to indemnify and hold the Company harmless from any
claims, demands, deficiencies, penalties, assessments, executions, judgments, or
recoveries by any government agency against the Company for any amounts claimed
due on account of Employee's failure to pay federal or state taxes or damages
sustained by the Company by reason of any such claims, including reasonable
attorneys' fees.
17. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
18. Indemnification.
(a) Employee agreed to indemnify and hold harmless the Company from and
against any and all loss, costs, damages or expenses, including, without
limitation, attorneys' fees or expenses incurred by the Company arising out of
the breach of this Agreement by Employee, or from any false representation made
herein by Employee, or from any action or proceeding which may be commenced,
prosecuted or threatened by Employee or for Employee's benefit, upon Employee's
initiative, or with Employee's aid or approval, contrary to the provisions of
this Agreement. Employee further agrees that in any such action or proceeding,
this Agreement may be pled by the Company as a complete defense, or may be
asserted by way of counterclaim or cross-claim.
(b) Employee shall be entitled to all of the rights and benefits to the
maximum extent permitted by Delaware law provided to former officers with
respect to indemnification by the certificate of incorporation and bylaws of the
Company notwithstanding anything to the contrary herein.
19. Cooperation in Litigation. Employee agrees to cooperate fully with the
Company in any matters that have or may result in a legal claim against the
Company, and of which Employee may have knowledge as a result of Employee's
employment with the Company. 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 Employee's out-of-pocket costs, and (2) notify the Company promptly
of any requests to Employee 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.
20. Arbitration. The Parties agree that any and all disputes arising out
of, or relating to, the terms of this Agreement, their interpretation, and any
of the matters herein released, shall be subject to binding arbitration in
Omaha, Nebraska before the American Arbitration Association under its National
Rules for the Resolution of Employment Disputes. The Parties agree that the
prevailing party in any arbitration shall be entitled to injunctive relief in
any court of competent jurisdiction to
enforce the arbitration award. The Parties agree that the prevailing party in
any arbitration shall be awarded its reasonable attorneys' fees and costs. THE
PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM
RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY. This section shall not prevent
either party from seeking injunctive relief (or any other provisional remedy)
from any court having jurisdiction over the Parties and the subject matter of
their dispute relating to Employee's obligations under this Agreement and the
agreements incorporated herein by reference.
21. Authority. The Company represents and warrants that the undersigned has
the authority to act on behalf of the Company and to bind the Company and all
who may claim through it to the terms and conditions of this Agreement. Employee
represents and warrants that he has the capacity to act on his own behalf and on
behalf of all who might claim through him to bind them to the terms and
conditions of this Agreement. Each party warrants and represents that there are
no liens or claims of lien or assignments in law or equity or otherwise of or
against any of the claims or causes of action released herein.
22. No Representations. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
23. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision so long as the remaining provisions remain intelligible and continue
to reflect the original intent of the Parties.
24. Entire Agreement. This Agreement represents the entire agreement and
understanding between the Company and Employee concerning the subject matter of
this Agreement and Employee's relationship with the Company, and supersedes and
replaces any and all prior agreements and understandings between the Parties
concerning the subject matter of this Agreement and Employee's relationship with
the Company, with the exception of the Restricted Stock Unit Agreements, and the
applicable Sections of the Employment Agreement.
25. No Waiver. The failure of any party to insist upon the performance of
any of the terms and conditions in this Agreement, or the failure to prosecute
any breach of any of the terms and conditions of this Agreement, shall not be
construed thereafter as a waiver of any such terms or conditions. This entire
Agreement shall remain in full force and effect as if no such forbearance or
failure of performance had occurred.
26. No Oral Modification. Any modification or amendment of this Agreement,
or additional obligation assumed by either party in connection with this
Agreement, shall be effective only if placed in writing and signed by both
Parties or by authorized representatives of each party.
27. Governing Law. This Agreement shall be deemed to have been executed and
delivered within the state of New York, and it shall be construed, interpreted,
governed, and enforced in accordance with the laws of the state of New York,
without regard to conflict of law principles. To the extent that either party
seeks injunctive relief in any court having jurisdiction for any claim relating
to the alleged misuse or misappropriation of trade secrets or confidential or
proprietary
information, each party hereby consents to personal and exclusive jurisdiction
and venue in the state and federal courts of the state of New York.
28. Attorneys' Fees. In the event that either Party brings an action to
enforce or effect its rights under this Agreement, the prevailing party shall be
entitled to recover its costs and expenses, including the costs of mediation,
arbitration, litigation, court fees, plus reasonable attorneys' fees, incurred
in connection with such an action.
29. Effective Date. This Agreement is effective after it has been signed by
both parties and after eight (8) days have passed since Employee has signed the
Agreement (the "Effective Date"), unless revoked by Employee within seven (7)
days after the date the Agreement was signed by Employee.
30. Counterparts. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
31. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) they have read this Agreement;
(b) they have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) they understand the terms and consequences of this Agreement and
of the releases it contains; and
(d) they are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective
dates set forth below.
TD AMERITRADE HOLDING CORPORATION
Dated: March 28, 2007 By /s/ XXXXXX X. XXXXXX
-------------------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
XXXXX X. XXXXX, an individual
Dated: March 28, 2007 /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
SCHEDULE A
EQUITY AWARDS VESTED AS OF TERMINATION DATE
STOCK OPTIONS
Grant Date Expiration Date Exercise Price Total Granted Vested / Unexercised
---------- --------------- -------------- ------------- --------------------
4/7/2003 12/31/2007 $4.07 972,825 486,413
RESTRICTED STOCK UNITS
Grant Date Expiration Date Total Granted Vested
---------- --------------- ------------- ------
3/10/2006 Termination Date 116,109 0
10/25/2006 Termination Date 28,735 0
