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EXHIBIT 10.19
AGREEMENT FOR CONSULTING SERVICES
THIS AGREEMENT is made and entered into as of Nov. 15, 1999 between Xxxxxx
Xxxxxx (the "Consultant"), and Ameritrade Holding Corporation (the
"Corporation").
WITNESSETH THAT:
WHEREAS, the Consultant was previously employed by the Corporation and has
unique and valuable knowledge relating to certain financial and strategic
planning matters affecting the Corporation and its business.
WHEREAS, the Corporation has determined that it would derive substantial
benefit from the Consultant's transferring his expertise relating to these
matters in order to transition, train and transfer such skills to his successor,
and
WHEREAS, the Corporation desires to retain the services of the Consultant
as a consultant to the Corporation for the limited purposes set forth below and
the Consultant desires to provide such services to the Corporation, all on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises of
the parties contained herein and other good and valuable consideration, the
Corporation and Consultant agree as follows:
1. Services. Consultant agrees that, during the term (as described in Section
3), he shall provide consulting services to the Corporation. Specifically,
Consultant shall make himself available, at the request of the Corporation,
to consult and advise the Corporation and Chief Executive Officer in the
performance of financial and strategic planning related duties provided,
however, that Contractor shall not be required to devote more than 40 hours
per week to the performance of consulting services hereunder. Consultant
shall act only in advisory capacity to Corporation. Corporation shall not
have any authority or right to direct or control Consultant in the manner
or method he carries out services hereunder, including, but not limited to,
the days, times, places and number of hours that he renders services during
the Term. Consultant shall have complete discretion as to the manner and
method he carries out his duties hereunder, so long as the matters or
issues brought by the Corporation to the Consultant during the Term are
resolved to the satisfaction of the Corporation in such time as agreed to
by the parties. Consultant shall be under no obligation to carry out the
duties (or for any of the responsibilities) of the Chief Financial Officer
nor to schedule or report progress to Corporation with respect to services
rendered hereunder, though Corporation and Consultant may meet from time to
time to discuss the progress of the services provided. Consultant shall
provide only those services set forth in this paragraph. Corporation may
from time to time during the term of this Agreement request that Consultant
provide additional services, but any additional services shall only be
provided with the consent of Consultant and Corporation and upon such terms
as agreed to in writing by the parties.
2. Price. Corporation shall pay Consultant an hourly rate of $280.00 per hour
(or as may be adjusted from time to time as agreed by Consultant and
Corporation) in full and final satisfaction for the services rendered
hereunder. Corporation shall pay said amount in monthly installments.
Consultant shall invoice Corporation for the amount due along with an
explanation of the work performed and Corporation shall pay the full amount
thereof within 30 days after receiving the invoice, or within a reasonable
time thereafter. The payment described in this Section 2 shall be the only
compensation to which Consultant is entitled for his services under this
Agreement.
3. Term. Consultant shall provide the services called for hereunder for a term
of twelve (12) months commencing November 15, 1999 and ending November 14,
2000. Notwithstanding the term set forth herein, either party
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may terminate this Agreement for any reasons, at any time upon thirty (30)
days advance written notice to the other party.
4. Expenses and Facilities. Corporation will only reimburse Consultant for
approved travel and other direct expenses incurred for Corporation
requested travel. Corporation shall be under no obligation to provide
office space to Consultant or reimburse other expenses incurred by him that
are related to services rendered hereunder. Consultant shall have
discretion to, at his expense, obtain such personnel, equipment or supplies
as are necessary or appropriate to carry out his responsibilities
hereunder.
5. Confidential Information. The Consultant hereby agrees that:
(a) Except as may be required by the lawful order of a court or agency of
competent jurisdiction, or except to the extent that Consultant has
express authorization from Corporation, he shall keep secret and
confidential indefinitely all non-public information concerning
Corporation and its affiliates which was acquired by or disclosed to
Consultant during the course of his engagement hereunder (or during
his prior employment with Corporation) and shall not disclose the
same, either directly or indirectly, to any other person, firm, or
business entity, or to use it in any way except as required in
performing services on behalf of Corporation.
(b) Upon the expiration of the term or at the Corporation's earlier
request, he will promptly return to Corporation any and all records,
documents, physical property, information, computer disks or other
materials relating to the business of Corporation and its affiliates
obtained by him during the course of his engagement hereunder (or
during his prior employment with Corporation).
(c) Nothing in the foregoing provisions of this Section 5 shall be
construed so as to prevent Consultant from using, in connection with
his employment for himself or a client other than Corporation or any
of its affiliates, knowledge which was acquired by him during the
course of his engagement hereunder which is not proprietary to the
Corporation, and which is generally known to persons of his experience
in other companies in the same industry.
Consultant acknowledges that Corporation would be irreparably injured by a
violation of this Section 5 and agrees that Corporation, in addition to
other remedies available to it for such breach or threatened breach, shall
be entitled to a preliminary injunction, temporary restraining order, other
equivalent relief, restraining Consultant from any actual or threatened
breach of this Section 5 without any bond or other security being required.
6. Work Product Ownership. If, and to the extent that Consultant may under
applicable law be entitled to claim any ownership in any work product
produced for Corporation under this Agreement, Consultant hereby transfers,
grants, conveys, assigns and relinquished exclusively to Corporation any
and all rights to such work product under patent, copyright, trade secret
and trademark law in perpetuity or for the longest period otherwise
permitted by applicable law.
7. Relationship of the Parties. It is agreed and understood between the
parties to this Agreement that the services performed by Consultant
pursuant to this Agreement will be performed as an independent consultant
and not as an employee of Corporation or its affiliates.
8. Acknowledgement. Waiver of Rights. Consultant understands and agrees that,
as an independent contractor to the Company, he shall not be entitled to
participate in any benefits under any employee benefit plan, program,
policy or arrangement, and hereby expressly waives any rights or claims
with respect to participation in such plans or benefits thereunder. The
provisions of this paragraph shall continue to apply even if the
Consultant's relationship with the Company is hereafter recharacterized for
tax purposes.
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9. Applicable Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Nebraska.
10. Severability. In the event any term, condition or part of this Agreement
is determined by a court of competent jurisdiction to be unenforceable,
the remaining provisions of the Agreement shall be enforced as if the
unenforceable provision has been stricken.
11. Amendments. This Agreement may be amended by written agreement of the
parties.
12. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties, and supersedes all prior agreement,
understanding and discussions between the parties, whether oral or
written, with respect to the matters contained herein.
13. Taxes. Consultant will be responsible for all taxes measured directly by
payments made under this Agreement. Consultant agrees to indemnify and
hold Corporation harmless from and against any such tax liability.
Dated effective as of the 15th day of November, 1999.
AMERITRADE HOLDING CORPORATION
("Corporation")
By: ______________________________
Co-Chief Executive Officer
/s/ XX Xxxxxx
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Xxxxxx Xxxxxx ("Consultant")
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