EXHIBIT 10.9
TD AMERITRADE HOLDING CORPORATION
XXXXX X.X. XXXXXX EMPLOYMENT AGREEMENT
This Agreement, originally entered into as of September 26, 2006, by and
between TD Ameritrade Holding Corporation (the "Company") and Xxxxx X.X. Xxxxxx
("Executive"), is hereby amended and restated in its entirety effective as of
October 13, 2008 (the "Amendment Date").
1. Duties and Scope of Employment.
(a) Positions and Duties. As of September 26, 2006 (the "Effective
Date"), Executive serves, and will continue to serve, as Executive Vice
President, General Counsel and Secretary, reporting to the Company's Chief
Executive Officer (the "CEO"). Executive will render such business and
professional services in the performance of her duties, consistent with
Executive's position within the Company, as will reasonably be assigned to her
by the CEO. The period Executive is employed by the Company under this Agreement
is referred to herein as the "Employment Term".
(b) Obligations. During the Employment Term, Executive will devote
Executive's full business efforts and time to the Company and will use good
faith efforts to discharge Executive's obligations under this Agreement to the
best of Executive's ability and in accordance with each of the Company's
corporate guidance and ethics guidelines, conflict of interests policies and
code of conduct. For the duration of the Employment Term, Executive agrees not
to actively engage in any other employment, occupation, or consulting activity
for any direct or indirect remuneration without the prior approval of the
applicable committee of the Board of Directors (the "Board") or the CEO (which
approval will not be unreasonably withheld); provided, however, that Executive
may, without the approval of the Board, serve in any capacity with any civic,
educational, or charitable organization, provided such services do not interfere
with Executive's obligations to Company.
(i) Executive hereby represents and warrants to the Company
that Executive is not party to any contract, understanding, agreement or policy,
written or otherwise, that would be breached by Executive's entering into, or
performing services under, this Agreement. Executive further represents that he
has disclosed to the Company in writing all threatened, pending, or actual
claims that are unresolved and still outstanding as of the Effective Date, in
each case, against Executive of which he is aware, if any, as a result of her
employment with her current employer (or any other previous employer) or her
membership on any boards of directors.
(c) Other Entities. Executive agrees to serve, if requested and
without additional compensation, as an officer and director for each of the
Company's subsidiaries, partnerships, joint ventures, limited liability
companies and other affiliates, including entities in which the Company has a
significant investment as determined by the Company. As used in this Agreement,
the term "affiliates" will include any entity controlled by, controlling, or
under common control of the Company.
2. At-Will Employment. Executive and the Company agree that Executive's
employment with the Company constitutes "at-will" employment. Executive and the
Company acknowledge that this employment relationship may be terminated at any
time, upon written notice to the other party, with or without good cause or for
any or no cause, at the option either of the Company or Executive. However, as
described in this Agreement, Executive may be entitled to severance benefits
depending upon the circumstances of Executive's termination of employment.
3. Term of Agreement. This Agreement will have an initial term of three
(3) years commencing on the Effective Date (the "Initial Term"). On the third
anniversary of the Effective Date, this Agreement automatically will renew for
an additional one (1) year term (the "Additional Term") unless either party
provides the other party with written notice of non-renewal at least sixty (60)
days prior to the date of automatic renewal. Following the Additional Term, the
Agreement will renew for an additional one (1) year term upon the mutual consent
of Executive and the Company.
4. Compensation.
(a) Base Salary. Subject to periodic review by the Board, the
Company will pay Executive an annual salary of $300,000 as compensation for her
services (such annual salary, as is then effective, to be referred to herein as
"Base Salary"). The Base Salary will be paid periodically in accordance with the
Company's normal payroll practices and be subject to the usual, required
withholdings.
(b) Annual Incentive. With respect to each full fiscal year during
the Employment Term, Executive will be eligible to participate in the Ameritrade
Holding Corporation Management Incentive Plan ("MIP"), pursuant to which
Executive will be eligible to earn an annual incentive award (the "Annual
Incentive") based upon the achievement of applicable performance criteria
established by the Board within the first ninety (90) days of each fiscal year
during the Employment Term and communicated to Executive. Each Annual Incentive
will, effective as of each fiscal year beginning on or after October 1, 2008,
have a target value of $360,000 (the "Target").
(c) Equity Awards. During the Employment Term, Executive will be
eligible to participate in the Ameritrade Holding Corporation 1996 Long-Term
Incentive Plan (the "LTIP").
(i) Special Grant. On March 10, 2006, Executive was granted a
special award under the LTIP of 34,832 performance restricted share units (the
"Special Grant"). The Special Grant will be scheduled to vest and be settled in
accordance with the performance criteria and vesting schedule set forth on
Exhibit B of the applicable Special Grant Award Agreement.
(ii) Annual Award. With respect to each full fiscal year
beginning on and after October 1, 2008 during the Employment Term, Executive
will be eligible for an award under the LTIP of performance restricted share
units with a target value, determined by the Company pursuant to a reasonable
and uniform methodology, equal to $240,000 on the date of grant (the "Annual
Award"), and will be scheduled to vest and be settled in accordance with the
applicable performance criteria and vesting schedule provided in the applicable
Award Agreement.
5. Employee Benefits. Executive will be eligible to participate in
accordance with the terms of all Company employee benefit plans, policies and
arrangements that are applicable to other
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executive officers of the Company, as such plans, policies and arrangements may
exist from time to time.
6. Expenses. The Company will reimburse Executive for reasonable travel,
entertainment and other expenses incurred by Executive in the furtherance of the
performance of Executive's duties hereunder, in accordance with the Company's
expense reimbursement policy as in effect from time to time.
7. Termination of Employment. In the event Executive's employment with the
Company terminates for any reason, Executive will be entitled to any (a) unpaid
Base Salary accrued up to the effective date of termination, (b) unpaid, but
earned and accrued Annual Incentive for any completed fiscal year as of her
termination of employment, (c) pay for accrued but unused vacation that the
Company is legally obligated to pay Executive, (d) benefits or compensation as
provided under the terms of any employee benefit and compensation agreements or
plans applicable to Executive, (e) unreimbursed business expenses required to be
reimbursed to Executive, and (f) rights to indemnification Executive may have
under the Company's Articles of Incorporation, Bylaws, the Agreement, or
separate indemnification agreement, as applicable. In addition, if the
termination is by the Company without Cause or if Executive resigns for Good
Reason, Executive will be entitled to the amounts and benefits specified in
Section 8.
8. Severance.
(a) Termination Without Cause or Resignation for Good Reason. If
during the Employment Term Executive's employment is terminated by the Company
without Cause or if Executive resigns for Good Reason, then, subject to Sections
9 and 10 and the requirement to delay certain payments in Section 25, Executive
will receive: (i) a severance amount equal to $1,320,000 which shall be paid in
equal amounts over the course of the two (2) year period beginning after
Executive's employment is terminated in accordance with the Company's normal
payroll policies; (ii) an additional severance payment determined by taking the
current year's Annual Incentive pro-rated to the date of termination, with such
pro-rated amount to be calculated by multiplying the current year's Annual
Incentive target incentive compensation by a fraction with a numerator equal to
the number of days between the start of the current fiscal year and the date of
termination and a denominator equal to 365, (iii) for a period of two (2) years,
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, Executive will not be charged any premiums for such coverage; provided,
however, Executive will be responsible for any income tax due with respect to
such premiums, and (iv) restricted share units granted under the LTIP as part of
any Annual Awards or the Special Grant that (A) are subject to performance
vesting will be fully earned and the actual number of restricted share units
which will be considered vested (in addition to those which vested in accordance
with their terms) will be determined (1) by actual performance for any completed
performance period through the date of Executive's termination and (2) by actual
performance, as specified in the applicable Award Agreement, for any incomplete
or remaining performance periods after Executive's termination (the vested
restricted share units will be settled in shares of Company common stock on the
original settlement date as forth in the Award Agreement (without regard to such
termination)), and (B) are subject to time based vesting shall be considered
fully vested and will be settled promptly thereafter as provided by the
applicable Award Agreement.
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(b) Termination due to Death or Disability. In the event of a
termination of Executive's employment during the Employment Term due to death or
Disability, then, subject to Sections 9 and 10, Executive, or Executive's estate
as applicable, will be entitled to receive the current year's Annual Incentive
pro-rated to the date of termination, with such pro-rated amount to be
calculated by multiplying the current year's target incentive compensation by a
fraction with a numerator equal to the number of days between the start of the
current fiscal year and the date of termination and a denominator equal to 365.
9. Conditions to Receipt of Severance; Non-solicitation and
Non-competition; No Duty to Mitigate.
(a) Conditions to Receipt of Severance. The receipt of any severance
pursuant to Section 8 will be subject to Executive signing and not revoking a
separation and release of claims agreement in substantially the form attached as
Exhibit A, but with any appropriate reasonable modifications, reflecting changes
in applicable law, as is necessary to provide the Company with the protection it
would have if the release were executed as of the Effective Date. No severance
will be paid or provided until the separation agreement and release agreement
becomes effective. The Company agrees that it will execute and deliver to
Executive said separation and release of claims agreement no later than eight
(8) days after it receives a copy of such agreement executed by Executive.
Company agrees that it will be bound by such separation and release of claims
agreement and that same will become effective from and after the "Effective
Date" thereof (as defined in Section 28 of such separation and release of claims
agreement), even if Company fails or refuses to execute and deliver same to
Executive. The receipt of any severance pursuant to Section 8 will also be
subject to, during the Employment Term and the Restricted Period, Executive
complying with the non-solicitation and non-competition requirements of Section
9(b).
(b) Non-solicitation and Non-competition. During the Employment Term
and the Restricted Period (and with respect to the Restricted Period, only as
permitted by applicable law and the Maryland Rules of Professional Conduct, or
such other applicable rules of ethical conduct in effect in any other State
under which the Executive might be, or might become, authorized to practice
law), the Executive will not (without the written consent of the CEO) engage or
participate in any business within any state in the United States where the
Company conducts business (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 by the Company or any
of its Affiliates (as defined below). For purposes of this Agreement, the term
"primary businesses" is defined as an on-line brokerage business, including
active trader and long term investor client segments, and also includes any such
other business formally proposed (and considered at a meeting of the Board) to
be conducted by the Company or any of its Affiliates during the twelve (12)
month period prior to the date of termination (collectively a "Competitive
Business"). Provided that this restriction will not restrict Executive from
being employed by or consulting with a business, firm, corporation, partnership
or other entity that owns or operates an on-line brokerage, provided that (i)
the on-line brokerage business is de minimis as compared to its core business in
terms of revenue and/or resources, and (ii) Executive's involvement with the
company excludes, directly or indirectly, the on-line brokerage business during
the Restriction Period. Notwithstanding the foregoing, Executive may (i) own
securities of a Competitive Business so long as the securities of such
corporation or other entity are listed on a
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national securities exchange or on the NASDAQ National Market and the securities
owned directly or indirectly by Executive do not represent more than 2% of the
outstanding securities of such corporation or other entity; and (ii) during the
Restricted Period, practice law as an attorney in private practice (e.g., as an
attorney affiliated with a law firm or as a solo practitioner) so long as
Executive agrees, to the extent permitted by applicable law and the Maryland
Rules of Professional Conduct, or such other applicable rules of ethical conduct
in effect in any other State under which the Executive might be, or might
become, authorized to practice law), to not provide legal advice or any
assistance of any nature to any Competitive Business;
(i) During the Restricted Period, neither Executive, nor any
business in which Executive may engage or participate in, will directly or
indirectly, (A) knowingly induce any customer or vendor of the Company or of
corporations or businesses which directly or indirectly are controlled by the
Company (collectively, the "Affiliates") to patronize any Competitive Business;
(B) knowingly request or advise any customer or vendor to withdraw, curtail or
cancel such customer's or vendor's business with the Company or any of its
Affiliates; or (C) 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;
(ii) During the Restricted Period, neither Executive nor any
business in which Executive may engage or participate in will (A) knowingly
hire, solicit for hire or attempt to hire any employee of the Company or any of
its Affiliates, or (B) encourage any employee of the Company or any of its
Affiliates to terminate such employment. For purposes of this Agreement,
"employee" means current employees as well as anyone employed by the Company or
any of its Affiliates within the prior six (6) months from Executive's date of
termination; provided, however, that this provision will not preclude any
business in which Executive may engage or participate in from soliciting any
such employee by means of or hiring any such employee who responds to a public
announcement placed by the business as long as Executive otherwise complies with
subsections (A) and (B) above; and
(iii) In the event that any of the provisions of this Section
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.
(c) Nondisparagement. During the Employment Term and Restricted Period,
Executive will not knowingly disparage, criticize, or otherwise make any
derogatory statements regarding the Company, its directors, or its officers. The
Company will instruct its officers and directors to not knowingly disparage,
criticize, or otherwise make any derogatory statements regarding Executive
during the Employment Term and Restricted Period. Notwithstanding the foregoing,
nothing contained in this agreement will be deemed to restrict Executive, the
Company or any of the Company's current or former officers and/or directors from
providing information to any governmental or regulatory agency (or in any way
limit the content of any such information) to the extent they are requested or
required to provide such information pursuant to applicable law or regulation.
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(d) Other Requirements. Executive's initial receipt of severance
and/or the receipt of continued severance payments will be subject to Executive
complying with the terms and provisions of Sections 9 and 10. Executive will not
be obligated to comply with Section 9 of this Agreement while the Company is in
material default of its payment and reimbursement obligations under Sections 7,
8, or 10 of this Agreement. Notwithstanding the foregoing, the Company will not
be considered to be in default of its payments and reimbursement obligations
unless Executive provides written notice to the Board setting forth her reasons
why he believes the Company is in default and giving the Company fifteen (15)
days to cure such default, if any.
(e) No Duty to Mitigate. Executive will not be required to mitigate
the amount of any payment or consideration contemplated by this Agreement, nor
will any earnings that Executive may receive from any other source reduce any
such payment or consideration.
10. Confidential Information and Intellectual Property.
(a) Except as may be required by law, or except to the extent
required to perform Executive's duties and responsibilities hereunder, 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 Executive during the course of
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 Employment Term (whether by expiration or
termination) or at the Company's earlier request, 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 Executive during the course of her
employment with the Company and not keep any copies thereof.
(c) Executive acknowledges and agrees that all right, title and
interest in inventions, discoveries, improvements, trade secrets, developments,
processes and procedures made by Executive, in whole or in part, or conceived by
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 Executive's termination of employment, are owned by
the Company ("Company IP"). Executive assigns any and all right, title and
interest he 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 Executive
and 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. 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.
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(d) To the extent that any court or agency seeks to require
Executive to disclose Confidential Information, 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 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, 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 10 will be construed so as to prevent Executive
from using, in connection with her employment for himself or an employer other
than the Company, knowledge which was acquired by him during the course of her
employment with the Company and which is generally known to persons of her
experience in other companies in the same industry. Subject to Section 10(d),
Executive will be permitted to disclose Confidential Information if required by
a subpoena or court or administrative order.
(f) The receipt of any severance pursuant to Section 8 will be
subject to Executive complying with the terms of this Section 10.
11. Excise Taxes. In the event that the benefits provided for in this
Agreement constitute "parachute payments" within the meaning of Section 280G of
the Code and will be subject to the excise tax imposed by Section 4999 of the
Code (the "Excise Tax"), then Executive's severance benefits payable under the
terms of this Agreement will be either (i) delivered in full, or (ii) delivered
as to such lesser extent which would result in no portion of such severance
benefits being subject to the Excise Tax, whichever of the foregoing amounts,
taking into account the applicable federal, state and local income taxes and the
Excise Tax, results in the receipt by Executive on an after-tax basis, of the
greatest amount of severance benefits, notwithstanding that all or some portion
of such severance benefits may be taxable under Section 4999 of the Code. Unless
the Company and Executive otherwise agree in writing, any determination required
under this Section 11 will be made in writing by the Company's independent
public accountants (the "Accountants"), whose determination will be conclusive
and binding upon Executive and the Company for all purposes. For purposes of
making the calculations required by this Section 11, the Accountants may make
reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the application of
Section 280G and 4999 of the Code. The Company and Executive will furnish to the
Accountants such information and documents as the Accountants may reasonably
request in order to make a determination under this Section 11. The Company will
bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 11. Any reduction in payments and/or
benefits required by this Section 11 shall occur in the following order: (1)
reduction of cash payments; and (2) reduction of other benefits paid to
Executive. In the event that acceleration of vesting of equity awards is to be
reduced, such acceleration of vesting shall be cancelled in the reverse order of
the date of grant for Executive's equity awards.
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12. Definitions.
(a) Award Agreement. For purposes of this Agreement, "Award
Agreement" will mean the form of award agreement entered into between Executive
and the Company in connection with the Special Grant and Annual Awards.
(b) Cause. For purposes of this Agreement, "Cause" will mean:
(i) Executive's willful and continued failure to perform the
duties and responsibilities of her or her position after there has been
delivered to Executive a written demand for performance from the Board which
describes the basis for the Board's belief that Executive has not substantially
performed her or her duties and provides Executive with thirty (30) days to take
corrective action;
(ii) Any act of personal dishonesty taken by Executive in
connection with her or her responsibilities as an employee of the Company with
the intention or reasonable expectation that such action may result in the
substantial personal enrichment of Executive;
(iii) Executive's conviction of, or plea of nolo contendere
to, a felony that the Board reasonably believes has had or will have a material
detrimental effect on the Company's reputation or business;
(iv) A breach of any fiduciary duty owed to the Company by
Executive that has a material detrimental effect on the Company's reputation or
business;
(v) Executive being found liable in any Securities and
Exchange Commission or other civil or criminal securities law action or entering
any cease and desist order with respect to such action (regardless of whether or
not Executive admits or denies liability);
(vi) Executive (A) obstructing or impeding; (B) endeavoring to
influence, obstruct or impede, or (C) failing to materially cooperate with, any
investigation authorized by the Board or any governmental or self-regulatory
entity (an "Investigation"). However, Executive's failure to waive
attorney-client privilege relating to communications with Executive's own
attorney in connection with an Investigation will not constitute "Cause"; or
(vii) Executive's disqualification or bar by any governmental
or self-regulatory authority from serving in the capacity contemplated by this
Agreement or Executive's loss of any governmental or self-regulatory license
that is reasonably necessary for Executive to perform her responsibilities to
the Company under this Agreement, if (A) the disqualification, bar or loss
continues for more than thirty (30) days, and (B) during that period the Company
uses its good faith efforts to cause the disqualification or bar to be lifted or
the license replaced. While any disqualification, bar or loss continues during
Executive's employment, Executive will serve in the capacity contemplated by
this Agreement to whatever extent legally permissible and, if Executive's
employment is not permissible, Executive will be placed on leave (which will be
paid to the extent legally permissible).
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(c) Change of Control. For purposes of this Agreement, "Change of
Control" will have the meaning set forth in the LTIP.
(d) Disability. For purposes of this Agreement, Disability means, by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than twelve (12) months, or receipt by Executive of income
replacement benefits for a period of not less than three (3) months under an
applicable disability benefit plan of the Company.
(e) Good Reason. For purposes of this Agreement, "Good Reason" means
the occurrence of any of the following, without Executive's express written
consent:
(i) A significant reduction of Executive's duties, position,
or responsibilities, relative to Executive's duties, position or
responsibilities in effect immediately prior to such reduction;
(ii) A material reduction in the kind or level of employee
benefits to which Executive is entitled immediately prior to such reduction with
the result that Executive's overall benefits package is significantly reduced.
Notwithstanding the foregoing, a one-time reduction that also is applied to
substantially all other executive officers of the Company and that reduces the
level of employee benefits by a percentage reduction of 10% or less will not
constitute Good Reason;
(iii) A reduction in Executive's Base Salary, Target Annual
Incentive, or Annual Award as in effect immediately prior to such reduction.
Notwithstanding the foregoing, a one-time reduction that also is applied to
substantially all other executive officers of the Company and which one-time
reduction reduces the Base Salary, Target Annual Incentive, or Annual Award by a
percentage reduction of 10% or less in the aggregate will not constitute Good
Reason;
(iv) The relocation of Executive to a facility or location
more than twenty-five (25) miles from her current place of employment; or
(v) The failure of the Company to obtain the assumption of the
Agreement by a successor.
(f) In Connection with a Change of Control. For purposes of this
Agreement, a termination of Executive's employment with the Company is "in
Connection with a Change of Control" if Executive's employment is terminated
within twelve (12) months following a Change of Control.
(g) Restricted Period. For purposes of this Agreement, "Restricted
Period" will mean the period of time commencing on the date of the termination
of Executive's employment and continuing for two (2) years (or in the case of a
termination in Connection with a Change of Control continuing for a period equal
to one (1) year). Notwithstanding the foregoing, if Executive terminates her
employment voluntarily, and such termination is not a termination for Good
Reason, then at the discretion of the Company, the Restricted Period will mean a
period of time commencing on the date of the termination of Executive's
employment and continuing for one (1) year; provided, however, that the Company
agrees to pay to Executive continued payment of her Base Salary for a period of
one (1) year.
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13. Indemnification. Subject to applicable law, Executive will be provided
indemnification to the maximum extent permitted by the Company's Articles of
Incorporation or Bylaws, including, if applicable, any directors and officers
insurance policies, with such indemnification to be on terms determined by the
Board or any of its committees, but on terms no less favorable than provided to
any other Company executive officer or director and subject to the terms of any
separate written indemnification agreement.
14. Assignment. This Agreement will be binding upon and inure to the
benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death, and (b) any successor of the Company. Any such successor of
the Company will be deemed substituted for the Company under the terms of this
Agreement for all purposes. For this purpose, "successor" means any person,
firm, corporation, or other business entity which at any time, whether by
purchase, merger, or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company. None of the rights
of Executive to receive any form of compensation payable pursuant to this
Agreement may be assigned or transferred except by will or the laws of descent
and distribution. Any other attempted assignment, transfer, conveyance, or other
disposition of Executive's right to compensation or other benefits will be null
and void.
15. Notices. All notices, requests, demands and other communications
called for hereunder will be in writing and will be deemed given (a) on the date
of delivery if delivered personally, (b) one (1) day after being sent overnight
by a well established commercial overnight service, or (c) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Company:
Attn: Chairman of the HR and Compensation Committee
c/o Chief Human Resources Officer
TD Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, XX 00000
If to Executive:
at the last residential address known by the Company.
16. Severability. If any provision hereof becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable, or void, this
Agreement will continue in full force and effect without said provision.
17. Arbitration. The Parties agree that any and all disputes arising out
of the terms of this Agreement, Executive's employment by the Company,
Executive's service as an officer or director of the Company, or Executive's
compensation and benefits, their interpretation and any of the matters herein
released, will be subject to binding arbitration in Omaha, Nebraska before the
American Arbitration Association under its National Rules for the Resolution of
Employment Disputes, supplemented by the Nebraska Rules of Civil Procedure. The
Parties agree that the
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prevailing party in any arbitration will be entitled to injunctive relief in any
court of competent jurisdiction to enforce the arbitration award. 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 paragraph will 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 Executive's obligations under this Agreement.
18. Integration. This Agreement and the standard forms of equity award
grant that describe Executive's outstanding equity awards, represents the entire
agreement and understanding between the parties as to the subject matter herein
and supersedes all prior or contemporaneous agreements whether written or oral,
including, but not limited to, the Employment Agreement entered into between
Executive and Ameritrade Holding Corporation, dated September 9, 2002. No
waiver, alteration, or modification of any of the provisions of this Agreement
will be binding unless in a writing and signed by duly authorized
representatives of the parties hereto. In entering into this Agreement, no party
has relied on or made any representation, warranty, inducement, promise, or
understanding that is not in this Agreement.
19. Waiver of Breach. The waiver of a breach of any term or provision of
this Agreement, which must be in writing, will not operate as or be construed to
be a waiver of any other previous or subsequent breach of this Agreement.
20. Survival. The Company's and Executive's responsibilities under
Sections 8, 9, 10, and 13 will survive the termination of this Agreement.
21. Headings. All captions and Section headings used in this Agreement are
for convenient reference only and do not form a part of this Agreement.
22. Tax Withholding. All payments made pursuant to this Agreement will be
subject to withholding of applicable taxes.
23. Governing Law. This Agreement will be governed by the laws of the
State of New York without regard to its conflict of laws provisions.
24. Acknowledgment. Executive acknowledges that he has had the opportunity
to discuss this matter with and obtain advice from her private attorney, has had
sufficient time to, and has carefully read and fully understands all the
provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement.
25. Code Section 409A. Notwithstanding anything to the contrary in this
Agreement, if the Company reasonably determines that Section 409A of the Code
will result in the imposition of additional tax to an earlier payment of any
severance or other benefits otherwise due to Executive on or within the six (6)
month period following Executive's termination, the severance benefits will
accrue during such six (6) month period and will become payable in a lump sum
payment on the date six (6) months and one (1) day following the date of
Executive's termination. All subsequent payments, if any, will be payable as
provided in this Agreement.
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26. Counterparts. This Agreement may be executed in counterparts, and each
counterpart will have the same force and effect as an original and will
constitute an effective, binding agreement on the part of each of the
undersigned.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by a duly authorized officer, as of the day and year
written below.
COMPANY:
TD AMERITRADE HOLDING CORPORATION
/s/ XXXXXXX X. XXXXXXX Date: October 14, 2008
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
EXECUTIVE:
/s/ XXXXX X.X. XXXXXX Date: October 13, 2008
-----------------------------------------
Xxxxx X.X. Xxxxxx
[SIGNATURE PAGE TO KOPLOW EMPLOYMENT AGREEMENT]
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EXHIBIT A
SEPARATION AND RELEASE OF CLAIMS AGREEMENT
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