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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated March 27, 2000, between Ameritrade Holding
Corporation (the "Corporation"), and Xxxx X. XxxXxxxxx (the "Executive").
RECITALS
Effective as of March 27, 2000, the Executive is the Vice President, Chief
Financial Officer of the Corporation. The Corporation desires to assure to the
Corporation the benefits of the Executive's expertise and knowledge, and the
Executive, in turn, desires full-time, at-will employment with the Corporation,
on the terms provided in this Agreement.
Accordingly, in consideration of the mutual agreements contained in this
Agreement, the parties agree as follows:
ARTICLE I
FULL-TIME EMPLOYMENT OF EXECUTIVE
1.1 DUTIES AND STATUS.
(a) Titles, Authority and Reporting. The Corporation hereby engages the
Executive as a full-time, at-will, employee, effective as of March 27, 2000, and
the Executive accepts such employment, on the terms and conditions set forth in
this Agreement. During his employment with the Corporation, the Executive shall
hold such titles, shall exercise such authority and shall perform such executive
duties as are assigned to him by the Chairman of the Board of the Corporation or
its designee. The Executive shall report to the CEO of the Corporation, Xxxxxx
X. Xxxxx or to such other individual designated by the Chairman of the Board of
the Corporation.
(b) Full-time Efforts. During his employment with the Corporation, the
Executive shall devote his full professional time and efforts to the business of
the Corporation and will not engage in consulting work or any trade or business
of his own account or for or on behalf of any other individual or entity.
(c) Place of Employment. Except for reasonable business travel, the
Executive shall be required to perform the services and duties provided for in
Section 1.1(a) and (b) primarily at the principal offices of the Corporation in
the Omaha, Nebraska metropolitan area. The Executive shall also spend a portion
of his time in New York City at the Corporation's offices, which are intended to
be established in the future.
(d) Inability to Perform. During his employment with the Corporation,
the Executive shall be entitled to vacation and leave for illness or temporary
disability in accordance with the Corporation's policies for its senior
executive officers. Any leave on account of illness or temporary disability
which is short of a long term disability (as determined by the Corporation in
its discretion) shall not constitute a breach of this Agreement by the
Executive, but leave on
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account of a long term disability (as determined by the Corporation in its
discretion) shall be deemed to result in a voluntary termination by the
Executive of the Executive's employment with the Corporation.
(e) Guidelines and Laws. During his employment with the Corporation, the
Executive shall at all times comply with the Corporation's Equity Ownership and
Disposition Guidelines (which currently generally require the Executive to own
Corporation stock valued at two times the Executive's base salary no later than
March 26, 2004). In addition, during his employment with the Corporation, the
Executive shall at all times comply with all applicable Corporation policies and
all applicable federal, State and local laws.
(f) Assistance with Claims. During his employment with the Corporation,
and for a reasonable time thereafter, the Executive will provide reasonable
assistance to the Corporation and/or its affiliates in defense or prosecution of
claims against or by the Corporation and/or its affiliates, to the extent that
the Executive has knowledge or information that, in the judgment of the
Corporation, could be of such assistance. The Corporation shall reimburse the
Executive for any reasonable out-of-pocket expenses associated with such
assistance.
1.2 COMPENSATION AND GENERAL BENEFITS. As compensation for his services
under this Agreement, the Executive shall be compensated as follows:
(a) Base Salary. The Corporation shall pay the Executive an initial base
salary at the rate of three hundred thousand dollars ($300,000) per year,
payable on the Corporation's regular schedule for executive pay. The Executive's
initial base salary is subject to review and adjustment from time-to-time as
deemed appropriate by the Board of the Corporation or its designee.
(b) Benefit Programs. Throughout the Employment Period, the Executive
shall be entitled to participate in the Corporation's employee benefit programs
generally available to its senior executive employees, pursuant to the terms of
those programs. The Corporation retains the right to terminate or amend these
programs from time-to-time as it deems appropriate.
The benefit programs in which the Executive shall participate on March
27, 2000 include, but are not limited to, the following:
1. Incentive Bonus. The Executive is eligible to receive an annual
incentive bonus, payable at the same time as other executives and subject to pro
ration in year one, in accordance with all of the terms of the Corporation's
annual incentive bonus program. This program provides for a threshold bonus of
50% of base salary, a targeted bonus of 100% of base salary, and a maximum bonus
of 150% of base salary, with no bonuses paid for performance below the
threshold. The amount of any annual incentive bonus is determined using the
Corporation's bonus performance measurement program applicable to senior
executives. Presently, under that program, 60% of the bonus is based on
achievement of corporate objectives, and 40% is based on achievement of
individual objectives.
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2. Nonqualified Stock Options. Management will recommend to the
Compensation Committee of the Board of the Corporation that the Executive be
granted $700,000 worth of AMTD nonqualified stock options, with such options to
be awarded and their strike price set upon approval by the Compensation
Committee. The options would vest 25% at the end of each full year of employment
and in accordance with the Ameritrade Long Term Incentive Plan.
After this initial grant, the Executive will be eligible for the next
normal grant on the next regular grant date for other executives. Management
will recommend to the Board a normal grant consistent with the existing
executive stock option program with a target grant of $250,000 (83% of starting
base salary).
All of the above will be based on the Corporation's method of
calculating stock option grants for executives established by the Corporation's
external compensation consultant.
Subject to Board approval, the Executive's unvested stock options will
vest upon a change of control. For this purpose, change of control means that
the Control Group as that term is defined in the Corporation's Certificate of
Incorporation (i.e., J. Xxx Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, the lineal
descendants of J. Xxx Xxxxxxxx and Xxxxxxx X. Xxxxxxxx and their spouses, and
any trust or other person or entity that holds Common Stock for the benefit of
the foregoing) is no longer entitled to appoint a majority of the Corporation's
Board of Directors.
No unvested stock options will vest upon the Executive's termination of
employment, except as indicated above with respect to a change of control.
A vested stock option may be exercised within the ten year period
beginning on the date of grant of the option, except in the event of termination
"for cause" (as defined in Section 4.2) in which case the exercise period for
any vested options will expire one year from the date of termination.
3. Paid Time Off/Vacation. The Executive is entitled to 20 days paid
time off and Corporation holidays during calendar year 2000, and 20 days paid
time off (and Corporation holidays) each January 1 thereafter.
4. Relocation Costs. The Corporation will reimburse the Executive for
the reasonable costs of his family's relocation from Middletown, New Jersey to
the Omaha, Nebraska area. In particular, the Corporation will reimburse realtor
fees incurred in the sale of the Executive's New Jersey residence, other
reasonable closing costs associated with that sale and the purchase of a new
residence in Nebraska, reasonable expenses associated with packing and moving of
household goods, and reasonable costs incurred in connection with two
househunting trips for the Executive and his spouse, one of which trips may
include the Executive's children. In addition, the Corporation will provide the
Executive with temporary housing in Nebraska until the Executive's children's
current school year ends, for a period not to exceed three months. The
Corporation also will reimburse the Executive's tax liability that is a direct
result of his relocation expenses reimbursements from the Corporation, in an
amount not to exceed $50,000. All of the foregoing reimbursements will be
subject to applicable taxes and withholding. If the Executive
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voluntarily terminates his employment with the Corporation within one year of
the date of the actual relocation of his family to Nebraska, he will reimburse
the Corporation, within ninety days of the date of termination, for all amounts
paid by the Corporation under this paragraph.
5. Deferred Compensation Program. The Corporation intends to adopt a
deferred compensation program that will allow executives to defer some or all of
their incentive bonuses, where one of the investment elections will be
Corporation stock. If such a program is adopted, the Executive will be eligible
to participate in the program.
ARTICLE II
COMPETITION; CONFIDENTIAL INFORMATION; SOLICITATION
2.1 COMPETITION; CONFIDENTIAL INFORMATION. The Executive and the
Corporation recognize that, due to the nature of his employment with the
Corporation, the Executive will have access to and will acquire, and may assist
in developing, confidential and proprietary information relating to the business
and operations of the Corporation and its affiliates, including, without
limiting the generality of the foregoing, information with respect to the
Corporation's present and prospective financial and balance sheet data, systems,
customers, agents, accounts, deposits, loans, sales and marketing methods.
The Executive acknowledges that such information is of central
importance to the business of the Corporation and its affiliates and that
disclosure of it to or its use by others could cause substantial loss to the
Corporation and its affiliates. The Executive and the Corporation also recognize
that an important part of the Executive's duties will be to develop good will
for the Corporation and its affiliates through his personal contact with
customers, agents and others sharing business relationships with the Corporation
and its affiliates, and that there is a danger that this good will, a
proprietary asset of the Corporation and its affiliates, may follow the
Executive if and when his relationship with the Corporation is terminated.
The Executive accordingly agrees as follows:
(a) Non-Competition. During his employment with the Corporation, and
thereafter for the longer of six (6) months or any period during which or with
respect to which payments of compensation are being made to the Executive under
this Agreement or any benefit program of the Corporation, the Executive will
not, directly or indirectly, either individually or as owner, partner, agent,
employee, consultant or otherwise engage in any activity competitive with the
business of the Corporation and its affiliates.
(b) Passive Ownership. Nothing in this Article II shall be construed to
prevent the Executive from owning, as an entirely passive investment, not more
than ten percent (10%) of a class of equity securities issued by any issuer
whose business is in no way competitive with the business of the Corporation.
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The Executive also represents that he is not now a party to any
agreement restricting or purporting to restrict his right to perform any of the
services contemplated by this Agreement.
This Section 2.1 shall survive the termination of this Agreement.
2.2 NON-DISCLOSURE. During and at all times after the date of this
Agreement, the Executive will keep confidential any confidential or proprietary
information of the Corporation and its affiliates which is now known to him or
which becomes known to him as a result of his employment or association with the
Corporation and its affiliates and shall not at any time directly or indirectly
disclose any such information to any individual or entity or use the same in any
way other than in connection with the business of the Corporation and its
affiliates. For purposes of this Agreement, "confidential or proprietary
information" means information unique to the Corporation and/or its affiliates,
which has a significant business purpose and is not known or generally available
from sources outside the Corporation and its affiliates or typical of industry
practice. This Section 2.2 shall survive the termination of this Agreement.
2.3 NON-SOLICITATION. During and at all times after the date of this
Agreement, the Executive will not, without the express written consent of the
Corporation, solicit any individual who is an employee of the Corporation or any
of its affiliates to terminate his or her employment with the Corporation or its
affiliate. This Section 2.3 shall survive the termination of this Agreement.
ARTICLE III
CORPORATION'S REMEDIES FOR BREACH OF ARTICLE II
3.1 CORPORATION'S REMEDIES FOR BREACH. It is recognized that damages in the
event of a breach of Article II by the Executive would be difficult, if not
impossible, to ascertain, and it is therefore agreed that, if such a breach
occurs, the Corporation, in addition to and without limiting any other remedy or
right it may have, shall have the right to an injunction or other equitable
relief, in any court of competent jurisdiction, enjoining any such breach, and
the Executive hereby waives any and all defenses he may have on the ground of
lack of jurisdiction or competence of the court to grant such an injunction or
other equitable relief. The existence of this right shall not preclude any other
rights and remedies at law or in equity which the Corporation may have. The
Corporation also shall have the specific right to a refund of any payments made,
but not owed, to the Executive because of a breach by him of his obligations
hereunder, and the Corporation shall have the right to cease payments not
payable to the Executive because of a breach hereunder.
ARTICLE IV
AT-WILL EMPLOYMENT
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4.1 AT-WILL EMPLOYMENT. The Corporation or the Executive may terminate the
Executive's employment with the Corporation, at any time, for any reason.
4.2 PAYMENTS AFTER EMPLOYMENT PERIOD.
(a) Involuntary Termination Without Cause. If the Corporation terminates
the Executive's employment for reasons other than "for cause", in addition to
any benefits to which the Executive may be entitled under any of the
Corporation's employee benefit programs, the Corporation will pay the Executive
a severance allowance, subject to the Executive entering into a general release
acceptable to the Corporation in its discretion. This severance allowance, which
shall be paid only if the Executive is in full compliance with all of his
obligations under this Agreement, shall be the continuation of the Executive's
base salary, at the rate in effect on the date of termination, for the twelve
(12) month period following termination. Payment of this severance allowance
shall be made in installments on the regular paydays for senior executives. This
severance allowance shall be reduced by any payments due to the Executive under
any other severance program of the Corporation.
(b) Change of Control Terminations. If the Corporation terminates the
Executive's employment with the Corporation within six months after a change of
control of the Corporation (as defined in Section 1.2), in addition to any
benefits to which the Executive may be entitled under any of the Corporation's
employee benefit programs, the Corporation will pay the Executive a severance
allowance, subject to the Executive entering into a general release acceptable
to the Corporation in its discretion. This severance allowance, which shall be
paid only if the Executive is in full compliance with all of his obligations
under this Agreement, shall be the continuation of the Executive's base salary,
at the rate in effect on the date of termination, for the twelve (12) month
period following termination. Payment of this severance allowance shall be made
in installments on the regular paydays for senior executives. This severance
allowance shall be reduced by any payments due to the Executive under any other
severance program of the Corporation.
(c) Other Terminations. If the Executive's employment with the
Corporation terminates other than as described in (a) or (b) above, the
Executive, or the Executive's dependents, beneficiaries and estate, as the case
may be, will receive any termination benefits, including but not limited to
health care continuation benefits, as they may be entitled under the terms of
the Corporation's employee benefit programs in which the Executive participated
on the date of his termination which provide benefits upon the applicable type
of termination.
For purposes of this Section 4.2, the term "for cause" means conduct
that, in the judgment of the Corporation, would render the Executive incapable
of performing his duties under this Agreement, including but not limited to
embezzlement, fraud, perjury, alteration of documents, robbery, any felonious
acts, substantial non-performance and any conduct that the Corporation
determines would compromise the Corporation's interests.
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ARTICLE V
NOTICES
5.1 NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail to the Executive at the last address he has filed
in writing with the Corporation or, in the case of the Corporation, at its
principal executive offices.
ARTICLE VI
ENTIRE AGREEMENT; AMENDMENTS
6.1 ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the entire
understanding of the Executive and the Corporation with respect to the subject
matter of this Agreement and supersedes any and all prior understandings on the
subjects matter of this Agreement, written or oral, including but not limited to
the letter agreement between the parties dated February 28, 2000. This Agreement
may not be changed, modified or discharged orally, but only by an instrument in
writing signed by the parties. The invalidity or unenforceability of any
provisions of this Agreement shall in no way affect the validity or
enforceability of any other provision of this Agreement.
ARTICLE VII
DISPUTE RESOLUTION
7.1 DISPUTE RESOLUTION. In the event of any dispute, claim, question or
disagreement arising from or relating to this Agreement or its breach, the
parties shall use their best efforts to settle the dispute, claim, question or
disagreement. To this effect, they shall consult and negotiate with each other
in good faith and, recognizing their mutual interests, attempt to reach a just
and equitable solution satisfactory to both parties.
If they do not reach such a solution within 30 days, the parties agree
that any and all disputes, claims, questions or disagreements arising out of or
related to this Agreement shall be submitted to mediation. Either party may
commence mediation by providing the other party with a written request for
mediation, setting forth the subject of the dispute and the relief requested.
The parties will cooperate with one another in selecting a mediator, and in
scheduling the mediation proceedings. If the parties cannot agree on a mediator,
the parties agree that they shall appoint JAMS/Endispute as a mediation body.
The mediation shall be conducted in accordance with JAMS/Endispute's applicable
employment mediation rules and procedures then in effect. The parties agree that
they shall share equally in the costs of any mediation.
If the parties cannot reach a mutually satisfactory resolution by
mediation, any unresolved disputes, claims, questions or disagreements between
them, including any controversy
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or claim arising out of or relating to this Agreement (or its breach) shall be
settled by final, binding and non-appealable arbitration in Omaha, Nebraska by
one arbitrator. The arbitration shall be conducted by JAMS/Endispute or its
successor in interest in accordance with its applicable employment arbitration
rules and procedures then in effect. The arbitrator will be chosen from
JAMS/Endispute's panel of former judges. Judgment upon the award rendered in any
arbitration may be entered in any court having jurisdiction.
Except as noted below, during the pendency of this dispute resolution
process, the parties agree to forbear from filing or otherwise proceeding with
litigation. Any and all proceedings, hearings, findings or any other record of a
dispute under this Article 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 mediator or arbitrator.
Finally, this Article shall not be construed to limit the Corporation's
right to obtain relief under Article 3 with respect to any matter or controversy
subject to Article 3, and, pending a final determination by the arbitrator with
respect to any such matter or controversy, the Corporation 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.
The provisions of this Article may be enforced by any court of competent
jurisdiction, and the party seeking enforcement shall be entitled to an award of
all costs, fees and expenses, including reasonable attorneys fees, to be paid by
the party against whom enforcement is ordered.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement effective as of March 27, 2000.
ATTEST/WITNESS: THE CORPORATION
------------------------------- /s/ J. Xxx Xxxxxxxx
Print Name: Print Name: J. Xxx Xxxxxxxx
-------------------- ----------------
/s/ Xxxx X. XxxXxxxxx
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XXXX X. XXXXXXXXX
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