EXHIBIT 10.3
AMERITRADE HOLDING CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") between AMERITRADE
HOLDING CORPORATION, a Delaware corporation (the "Company") and Xxxxx X. Xxxxx
(the "Executive"), is made effective May 10, 2005 (the "Effective Date").
Witnesseth
WHEREAS, The Company has employed the Executive as Managing Director, Clearing
and now desires to promote the Executive to the position of Senior Vice
President, Chief Brokerage Operations Officer.
WHEREAS, The Executive desires to accept the promotion offered by the Company
and continue being employed by the Company.
WHEREAS, The Company and the Executive desire to set forth in this Agreement,
the terms, conditions and obligations of the parties with respect to such
promotion and continued employment and this Agreement is intended by the parties
to supersede all previous agreements (Excluding for this purpose, any option
agreements dated prior to the Effective Date ("Prior Option Agreements"), which
option agreements will remain in full force and effect and be subject to the
terms of the 1996 Long Term Incentive Plan,) and understandings, whether written
or oral, concerning employment with the Company and with any subsidiary of the
Company.
NOW THEREFORE, In consideration of the Company entering into this Agreement and
the benefits Executive will derive from the Agreement, Executive has agreed to
be bound by the restrictive covenants contained in the terms below and the
Company and the Executive agree as follows:
1. EMPLOYMENT. The Company will employ the Executive as Senior Vice
President, Chief Brokerage Operations Officer of the Company or a comparable
position as described in Section 6(e)(ii) below, upon the terms and conditions
set forth in this Agreement. The Executive will perform such duties and
responsibilities for the Company, which are commensurate with his position
subject to the reasonable direction of the Chief Executive Officer (the "CEO"),
Chief Operating Officer (the "COO") or the Chairman of the Board of Directors
(the "Chairman").
2. TERM. Subject to the provisions set forth in Section 6 below, the term
of this Agreement (the "Term") will be the period beginning on the Effective
Date and ending on May__ , 2007 unless earlier terminated in accordance with
Section 6 below. Within 90 days prior to the expiration of the Term, the
Executive and COO or CEO shall negotiate terms under which this agreement will
renew for another 12 months. Notwithstanding the foregoing, upon a
"Change of Control" (as defined in Section 7 below), the Term of this Agreement
will not change, unless earlier terminated in accordance with Section 6 below.
3. COMPENSATION. During the Term, the Executive will be compensated for
his services to the Company in accordance with the following:
(a) Base Salary. The Company will pay to the Executive an
annual base salary of $225,000, payable in accordance with the
Company's policies. The Executive's annual base salary may be
reviewed by the Company for possible increase (but not decrease)
during the Term of this Agreement at the Company's discretion.
(b) Annual Incentive. The Executive will be eligible to
participate in the Company's Management Incentive Plan (or any
successor short-term incentive plan or program) (the "MIP Plan") for
the Company's fiscal year 2005 and subsequent fiscal years during
the Term in accordance with the terms and conditions of the MIP Plan
with a target bonus of 60% of the Executive's annual base salary for
each fiscal year (the "Target Bonus"). The Executive's Target Bonus
for periods subsequent to the first year of the Term will be
determined by the Compensation Committee of the Board of Directors
of the Company (the "Compensation Committee") in its discretion and
based upon performance criteria determined for each fiscal year by
the Compensation Committee in its sole discretion but shall in no
event be less than 60% of the Executive's annual base salary for
such subsequent period.
(c) Long-Term Incentive Plan. The Executive will be eligible
to participate in the Company's 1996 Long-Term Incentive Plan (or
any successor long-term incentive plan or program) (the "LTIP"). Any
awards made under the LTIP will be made at the sole discretion of
the administrator of the LTIP, or the administrator's designee, and
will be subject to the terms and conditions of the LTIP and the
applicable award agreement. The Executive will be eligible for
periodic option awards, at the discretion and as determined by the
Compensation Committee from time to time, at the same time and
contingent upon options being granted to other Company executives by
the Compensation Committee. Number of options will be determined
using the same valuation methodology as other Company executives'
grants.
(d) Deferred Compensation Program. The Executive will be
eligible to participate in the Company's Executive Deferred
Compensation Program (or any successor deferred compensation
program) (the "Deferred Compensation Program") in accordance with
the terms and conditions of the Deferred Compensation Program.
(e) Benefits and Perquisites. The Executive will also receive
such benefits and perquisites (the "Benefits") which are made
available generally to other senior executives of the Company. All
such Benefits will be provided in such amounts as may be determined
from time to time by the Company in its discretion and pursuant to
the terms of the plan documents governing such Benefits.
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4. NON-COMPETITION, NON-SOLICITATION AND NON-HIRE PROVISIONS. The
Executive agrees that:
(a) During the term of this Agreement and for a period of 12
months after the natural expiration of the Term (without renewal) or
the Date of Termination whichever occurs first (collectively, the
"Restricted Period"), the Executive will not (without the written
consent of the Chief Executive Officer and the Chairman of the
Board) engage or participate in any business within the United
States (as an owner, partner, stockholder, holder of any other
equity interest, or financially as an investor or lender, or in any
capacity calling for the rendition of personal services or acts of
management, operation or control) which is engaged in any activities
and for any business competitive with any of the primary businesses
conducted or formally proposed to be conducted by the Company or any
of its Affiliates (as defined below) during the 12-month period
prior to the Date of Termination or expiration of the Term. For
purposes of this Agreement, the term "primary businesses" is defined
as an online brokerage business, including active trader and long
term investor client segments. Provided that this restriction shall
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 (a) the on-line
brokerage business is de minimis as compared to its core business in
terms of revenue and/or resources, and (b) Executive's involvement
with the company excludes, directly or indirectly, the on-line
brokerage business during the Restriction Period. Notwithstanding
the foregoing, the Executive may own securities of a Competitive
Business so long as the securities of such corporation or other
entity are listed on a national securities exchange or on the NASDAQ
National Market and the securities owned directly or indirectly by
the Executive do not represent more than one percent of the
outstanding securities of such corporation or other entity;
(b) During the Restricted Period neither the Executive, nor
any business in which the Executive may engage or participate in,
will directly or indirectly (i) 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, (ii)
knowingly canvass or solicit any business from any customer of the
Company or any of its Affiliates which business is of a type that is
similar to the business received by the Company or Affiliate from
the customer, (iii) request or advise any customer or vendor of the
Company or any of its Affiliates to withdraw, curtail or cancel such
customer's or vendor's business with the Company or any of its
Affiliates, or (iv) compete with the Company or any of its
Affiliates in merging with or acquiring any other company or
business (whether by a purchase of stock or other equity interests,
or a purchase of assets or otherwise) which is a Competitive
Business;
(c) During the Restricted Period, neither the Executive nor
any business in which the Executive may engage or participate in
will (i) knowingly hire, solicit or attempt to hire any employee or
contractor of the Company or any of its Affiliates or (ii) encourage
any employee or contractor of the Company or any of its Affiliates
to terminate employment or contractual arrangements. For purposes of
this Agreement,
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"employee" includes current employees as well as anyone employed by
the Company or any of its Affiliates within the prior six months
from the Executive's Date of Termination or expiration of the Term;
provided, however, that this provision shall not preclude any
business in which the Executive may engage or participate in from
hiring any such employee who responds to a public announcement
placed by the business as long as Executive does not exercise any
control over the business; and
(d) 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.
5. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY.
(a) Except as may be required by law, or except to the extent
required to perform the Executive's duties and responsibilities
hereunder, the Executive will keep secret and confidential
indefinitely all non-public confidential information (including,
without limitation, information regarding cost of new accounts,
activity rates of different market niche customers, advertising
results, technology (hardware and software), architecture,
discoveries, processes, algorithms, maskworks, strategies,
intellectual properties, customer lists and other customer
information) concerning any of the Company and its Affiliates which
was acquired by or disclosed to the Executive during the course of
the Executive's employment with the Company ("Confidential
Information") and not use in any manner or disclose the same, either
directly or indirectly, to any other person, firm or business
entity.
(b) At the end of the Term (whether by expiration or
termination) or at the Company's earlier request, the Executive will
promptly return to the Company any and all records, documents,
physical property, information, computer disks, drives or other
materials relative to the business of any of the Company and its
Affiliates obtained by the Executive during course of employment
with the Company and not keep any copies thereof.
(c) The Executive acknowledges and agrees that all right,
title and interest in inventions, discoveries, improvements, trade
secrets, developments, processes and procedures made by the
Executive, in whole or in part, or conceived by the Executive either
alone or with others, when employed by the Company, including such
of the foregoing items conceived during the course of employment
which are developed or perfected after the Executive's termination
of employment, are owned by the Company ("Company IP"). The
Executive assigns any and all right, title and interest 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 the Executive and the Executive will promptly execute all
reasonable documents prepared by the Company or its designee and
take all other reasonable actions which are necessary or appropriate
to
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secure to the Company and its Affiliates the benefits of Company IP.
Such patents, trademarks, copyrights and service marks will at all
times be the property of the Company and its Affiliates. The
Executive promptly will keep the Company informed of, and promptly
will execute such assignments prepared by the Company or its
designee as may be necessary to transfer to the Company or its
Affiliates the benefits of, any Company IP.
(d) To the extent that any court or agency seeks to require
the Executive to disclose Confidential Information, the Executive
promptly will inform the Company and take reasonable steps to
endeavor to prevent the disclosure of Confidential Information until
the Company has been informed of such requested disclosure, and the
Company has an opportunity to respond to such court or agency. To
the extent the Executive obtains information on behalf of the
Company or any of its Affiliates that may be subject to
attorney-client privilege as to the Company's attorneys, the
Executive will promptly inform the Company and take reasonable steps
to endeavor to maintain the confidentiality of such information and
to preserve such privilege.
(e) Confidential Information does not include information
already in the public domain or information which has been released
to the public by the Company. Nothing in this Section 5 shall be
construed so as to prevent the Executive from using, in connection
with his employment for himself or an employer other than the
Company, knowledge which was acquired by him during the course of
his employment with the Company and which is generally known to
persons of his experience in other companies in the same industry.
Subject to Section 5(d), Executive will be permitted to disclose
Confidential Information if required by a subpoena or court or
administrative order.
6. Termination.
(a) Date of Termination. For purposes of this Agreement, "Date
of Termination" is defined as (i) if the Executive's employment is
terminated by reason of death or disability, the date of such death
or disability; (ii) if the Executive's employment is terminated by
the Executive for reasons other than Good Reason (as defined below),
the date specified in the notice of termination, (iii) if the
Executive's employment is terminated by the Executive for Good
Reason (as defined below), the date of the Company's receipt of the
notice of termination or any later date agreed upon by the parties
and (iv) if the Executive's employment is terminated by the Company,
the date of the Executive's receipt of the notice of termination or
any later date specified therein.
(b) Payments upon Termination. The Company will pay to the
Executive in a lump sum in cash within 10 business days following
the Date of Termination the unpaid portion of the Executive's then
current annual base salary through the Date of Termination and the
Target Bonus under the MIP Plan, as applicable, for the fiscal year
in which the Date of Termination occurs, prorated for the portion of
the Company's fiscal year completed on the Date of Termination;
provided, however, that if the Executive's employment is terminated
by the Company for reason of Cause
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(as defined below), the Executive will not be entitled to such
prorated Target Bonus under the MIP Plan, as applicable. All other
Benefits will be paid and continued only to the extent the terms
thereof provide for the payment or continuation following the Date
of Termination. The vesting and exercisability of the Executive's
outstanding stock awards will be treated in accordance with the
terms of their respective grants or awards and subject to the terms
of section 409A of the Internal Revenue Code of 1986, as amended,
and the regulations and rulings thereunder.
(c) Death or Disability. If the Executive becomes physically
or mentally disabled and unable to perform the essential functions
of his employment (in the reasonable opinion of the Board of
Directors of the Company), even with reasonable accommodation, for a
continuous period in excess of 180 days or if the Executive should
die while an employee of the Company, the Executive's employment
with the Company will immediately terminate.
(d) Voluntary Resignation. The Executive may terminate
employment with the Company for reasons other than those described
in Section 6(e) by delivering written notice to the Company at least
30 days prior to such termination of employment.
(e) Termination by the Company for Reasons Other than Cause or
Voluntary Resignation by the Executive for Good Reason. In the event
the Company elects to terminate the Executive's employment for any
reason other than disability or those specified in Section 6(f), it
will provide written notice of such termination to the Executive,
which notice will include the date on which the Executive's
employment will terminate. The Executive may also terminate
employment with the Company for Good Reason by delivering written
notice to the Company within 90 days of the occurrence of an event
qualifying as Good Reason, but in any event prior to the end of the
Term. "Good Reason" is defined as one of the following events that
occurs without the written consent of the Executive:
(i) a material violation by the Company of the terms
of this Agreement which continues for 30 days
following receipt of notice from the Executive
specifying such violation;
(ii) a material reduction in the Executive's duties,
reporting relationship or responsibilities which
results in or reflects a material reduction of the
scope or importance of the Executive's position,
excluding for this purpose (1) an isolated,
unsubstantial or inadvertent action not taken in
bad faith and remedied by the Company after
receipt of notice given by the Executive to the
Chief Executive Officer, Chief Operating Officer
or the Chief Administrative Officer (CAO); (2) any
reorganization of the Executive Management Team by
the Company's CEO which results in a change in the
Executive's position with no decrease in base
salary for the Executive, so long as Executive's
position has a status substantially equal to, and
duties and responsibilities
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substantially the same as, the position of Senior
Vice President, Chief Brokerage Operations
Officer.
(iii) a reduction in the Executive's then current annual
base salary; or Target Bonus.
(iv) any relocation of Executive's base office in
Omaha, Nebraska, to an office that is more than 75
highway miles from Omaha, Nebraska; or
Upon termination of this Agreement for reasons specified in this
subsection (e), subject to the Executive's compliance with the
non-competition, non-solicitation, non-hire and confidentiality and
intellectual property provisions of this Agreement and the execution and
delivery by the Executive to the Company of the Separation and Release
Agreement described in Section 13 hereof, the Company will provide the
Executive with severance compensation and benefits which the Executive
hereby acknowledges to be good and sufficient consideration for the
release, non-competition, non-solicitation, non-hire, confidentiality, and
intellectual property provisions of this Agreement and which shall survive
the Term of this Agreement (in addition to the payments described in
Section 6(b)) as follows:
(v) the Executive will continue to receive his then
current annual base salary (or, if greater, the
annual base salary in effect 90 days prior to the
Date of Termination, but in no event less than
$225,000, payable on regularly scheduled paydays
for a period equal to the greater of (A) 12 months
or (B) the period from the Date of Termination
through the end of the Term (such period of
payment to be referred to as the "Severance
Period");
(vi) taking into account the amount of the Target Bonus
received under section 6(b) above and not in
addition thereto, the Executive will receive an
amount equal to the Target Bonus under the MIP
Plan, as applicable, for the entire fiscal year in
which the Date of Termination occurs, payable at
such time as bonuses are generally payable for
other participants under the MIP Plan; and
(vii) during the Severance Period, if the Executive or
any of his dependents is eligible for and elects
COBRA continuation coverage (as described in
Section 4980B of the Internal Revenue Code of
1986, as amended (the "Code")) under any Company
group medical or dental plan, the Executive will
not be charged any premiums for such coverage.
Executive shall be responsible for any income tax
due.
The foregoing will be in lieu of all salary, bonuses or incentive or
performance based compensation and any severance benefits to which the
Executive may otherwise be
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entitled. If the Executive dies during the Severance Period, any remaining
severance payments will be made to the Executive's surviving spouse or, if
none, to his estate.
(f) Termination by the Company for Cause. The Company will have a
right to terminate the Executive's employment under this Agreement prior
to the expiration of the Term for reason of Cause. "Cause" means:
(i) the failure by the Executive to substantially perform his
duties under this Agreement, other than due to illness, injury
or disability, which failure continues for ten days following
receipt of notice from the Board, CEO, COO or CAO specifying
such failure;
(ii) the willful engaging by the Executive in conduct which is
materially injurious to the Company, monetarily or otherwise;
(iii) misconduct involving serious moral turpitude to the
extent that in the reasonable judgment of the Board, CEO, COO
or CAO, the Executive's credibility or reputation no longer
conforms to the standard of the Company's executives; or
(iv) the violation of the provisions of Section 4 or Section 5
of this Agreement.
Notice of Termination for Cause. A Notice of Termination for Cause shall
mean a written notice that shall indicate the specific termination
provision above relied upon and shall set forth in reasonable detail the
facts and circumstances, which provide for a basis of the Termination for
Cause. Notwithstanding anything to the contrary contained in this
Agreement, in the event that a notice of termination is required to be
given by either party, the Company may, in its sole discretion and subject
to Executive's right to cure provided in subsection (i) above, choose to
have the termination effective immediately, provided the Company will be
obligated to provide the Executive with the compensation and benefits to
which he is entitled, as an employee, for the entire notice period.
7. CHANGE OF CONTROL.
(a) For the purpose of this Agreement, a "Change of Control" means
the occurrence of an event described in subsection (i), (ii) or (iii)
below:
(i) the completion of a plan of complete liquidation of the
Company which has been approved by the Company's
shareholders;
(ii) the sale or disposition of all or substantially all of
the assets of the Company (or any transaction having a
similar effect); or
(iii) the consummation of a merger, acquisition, or
consolidation of the Company with any other corporation
other than (1) a merger or consolidation which would
result in the voting securities of the Company
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being
converted into voting securities of the surviving
entity) more than 50% of the
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combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately
after such merger, acquisition or consolidation or (2) a
merger, acquisition or consolidation effected to
implement a recapitalization of the Company (or similar
transaction).
(b) Subject to the Executive's compliance with Sections 4 and
5 and subject to the Executive's execution of the Separation and
Release Agreement described in Section 13, if following a Change of
Control, the Executive's employment is terminated by the Company
without Cause within 12 months of the legal closing date of the
Change of Control or is terminated by the Executive for Good Reason
within 12 months of the legal closing date of the Change of Control,
the amount due to the Executive in Sections 6(e)(v) and 6(e)(vi)
will be paid in a lump sum within 30 days following such termination
of employment in lieu of payment at such times described in Sections
6(e)(v) and 6(e)(vi).
8. EXCISE TAXES. Anything in this Agreement to the contrary
notwithstanding, if any payment or benefit to which the Executive is entitled to
from the Company (the "Payments," which include the vesting of stock awards or
other benefits or property) is more likely than not to be subject to the tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any
successor provision to that section), the Payments shall be reduced to the
extent required to avoid application of such tax. The Executive will be entitled
to select the order in which Payments are to be reduced in accordance with the
preceding sentence. Determination of whether Payments would result in the
application of the tax imposed under Section 4999, and the amount of reduction
that is necessary so that no such tax is applied, shall be made at the Company's
expense, by the independent accounting firm employed by the Company immediately
prior to the occurrence of any Change of Control of the Company which will
result in the imposition of such tax.
9. EFFECT OF BREACH OF NON-COMPETITION, NON-SOLICITATION, NON-HIRE OR
CONFIDENTIALITY AND INTELLECTUAL PROPERTY PROVISIONS. The Executive acknowledges
that the Company would be irreparably injured by a violation of Sections 4 or 5
of this Agreement and agrees that the Company, in addition to other remedies
available to it for such breach or threatened breach will be entitled to a
preliminary injunction, temporary restraining order, other equivalent relief,
restraining the Executive from any actual or threatened breach of Sections 4 or
5 of this Agreement. Notwithstanding the other provisions of this Agreement, in
the event the Executive breaches or otherwise fails to comply with the
provisions of Sections 4 or 5 of this Agreement, then, in addition to any other
remedies provided herein at law or in equity, the Company shall not have any
obligation to make any further payments to the Executive on or after the date of
any such breach or failure. Further, in the event of any such breach or failure
to comply with Sections 4 or 5, the Company has the right, in its sole
discretion, to require the Executive to return any compensation, including, but
not limited to, cash severance, bonus payments, stock option proceeds, or
benefits payments, which the Executive received as a result of the termination.
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10. DEFENSE OF CLAIMS. The Executive agrees that, on and after the
Effective Date, he will cooperate with the Company and its Affiliates in the
defense of any claims that may be made against the Company or its Affiliates to
the extent that such claims may relate to services performed by him for the
Company. After separation of employment, such cooperation will be compensable at
the same annual base salary as paid under the terms of this Agreement (as
prorated for required service period) and Company agrees to promptly reimburse
the reasonable out-of-pocket expenses that Executive incurs in the course of
such cooperation.
11. SUCCESSORS AND ASSIGNS. This Agreement is personal to the Executive
and without the prior written consent of the Company the Executive's obligations
under this Agreement will not be assignable by the Executive. This Agreement
will inure to the benefit of and be binding upon the Company and its successors
and assigns.
12. INDEMNIFICATION. The Executive will be eligible for indemnification as
provided in the Company's Articles of Incorporation or Bylaws or pursuant to
other agreements in effect as of the effective date of this Agreement. In
addition, the Company will maintain directors' and officers' liability insurance
in effect and covering acts and omissions of the Executive, during the Term and
for a period of six years thereafter, on terms customary for companies that are
similar to the Company, but in no event shall the liability limits of such
insurance be less than the liability limits in effect for all other similar
senior executive employees of Company.
13. SEPARATION AND RELEASE AGREEMENT. Notwithstanding anything in Section
6 or Section 7 to the contrary, the Executive acknowledges that the severance
benefits provided hereunder are adequate and sufficient consideration for the
Separation and Release Agreement required hereunder. Furthermore, the Executive
acknowledges that the severance benefits under Section 6 or Section 7 shall only
become payable by the Company if the Executive executes and delivers to the
Company a Separation and Release Agreement on or after the date of written
notice of termination of Executive's employment and in substantially the form
attached, as an example, in Exhibit A hereof. The terms of the Separation and
Release Agreement will be subject to the terms of the Executive Employment
Agreement.
14. NOTICE. Any notice required or permitted to be given under this
Agreement will be in writing, signed by the party or parties giving or making
the same and will be served on the person or persons for whom it was intended or
who should be advised or notified, by Federal Express or other similar overnight
service. If the notice is sent to the Executive, the notice should be sent to
the address listed on the signature page of this Agreement or to such other
address furnished by the Executive in writing in accordance with this Agreement.
If notice is sent to the Company, the notice should be sent to:
Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000-0000
Attention: Chief Administrative Officer, with copies to Chief
Operating Officer and Chief Executive Officer
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or to such other address as furnished by the Company in writing in accordance
with this Agreement. Notice and communications will be effective when actually
received by the addressee.
15. MISCELLANEOUS.
(a) This Agreement is subject to and governed by the laws of
the State of Nebraska, without reference to principles of conflict
of laws.
(b) The failure to insist upon strict compliance with any
provision of this Agreement will not be deemed to be a waiver of
such provision or any other provision or right of this Agreement.
(c) This Agreement may not be modified except by an agreement
in writing executed by the parties to this Agreement.
(d) The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any
other provision of this Agreement.
(e) The Company may withhold from any amounts payable under
this Agreement such Federal, state or local taxes as may be required
to be withheld pursuant to any applicable law or regulation.
(f) This Agreement terminates and supersedes any and all prior
employment agreements or understandings, written or oral, with the
Executive and the Company or any of its subsidiaries or Affiliates.
The obligations of the Executive under Sections 4 and 5 shall
survive termination of this Agreement to the extent provided in
those sections.
(g) In the event of any dispute or controversy in arbitration
between the parties, the Company will pay the attorneys fees, costs
and expenses of the Executive if the Executive prevails.
(h) Any controversy, claim or dispute arising out of or
relating to this Agreement or breach thereof will be settled by
final, binding and nonappealable arbitration (excluding, however,
any dispute, controversy or claim arising out of Sections 4 or 5
hereof) in Omaha, Nebraska by three arbitrators. Except as otherwise
expressly provided in this subsection (h), the arbitration shall be
conducted in accordance with the commercial arbitration rules of the
American Arbitration Association (the "Association") then in effect.
One of the arbitrators shall be appointed by the Company, one shall
be appointed by the Executive and the third shall be appointed by
the first two arbitrators. If the first two arbitrators cannot agree
on the third arbitrator within 30 days of the appointment of the
second arbitrator, then the Association shall appoint the third.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
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AMERITRADE HOLDING CORPORATION
By: /S/ XXXX X. XXXXXXXXX
---------------------------------------
Chief Operating Officer
/S/ XXXXX X. XXXXX
-------------------------------------------
Xxxxx X. Xxxxx
___________________________________________
Street
___________________________________________
City, State and Zip Code
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