TD AMERITRADE HOLDING CORPORATION FREDRIC J. TOMCZYK EMPLOYMENT AGREEMENT
Exhibit 10.1
TD AMERITRADE HOLDING CORPORATION
XXXXXXX X. XXXXXXX EMPLOYMENT AGREEMENT
This Agreement is entered into as of July 2, 2007, by and between TD Ameritrade Holding
Corporation (the “Company”) and Xxxxxxx X. Xxxxxxx (the “Executive”).
1. Duties and Scope of Employment.
(a) Positions and Duties. As of July 2, 2007 (the “Effective Date”), Executive will
serve as Chief Operating Officer reporting to the Company’s Chief Executive Officer (the “CEO”).
Executive will render such business and professional services in the performance of his duties,
consistent with Executive’s position within the Company, as will reasonably be assigned to him by
the CEO. The period Executive is employed by the Company under this Agreement is referred to
herein as the “Employment Term”.
(b) Resignations and Company Stock Ownership. As a condition to employment with the
Company, Executive shall have, prior to the Effective Date, (1) resigned from (i) any and all
positions with the Previous Employer and any subsidiaries or affiliates of the Previous Employer,
and (ii) the Board of Directors of the Company (the “Board”) and (2) own shares of Company common
stock with a value at least equal to $1,000,000.
(c) 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 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.
(d) Impediments to Employment. 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 his employment
with the Previous Employer (or any other previous entity for which Executive provided services) or
his membership on any boards of directors.
(e) Other Entities. Executive agrees to serve, 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 five (5) years
commencing on the Effective Date (the “Initial Term”). On the fifth 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 $500,000 as compensation for his 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 Compensation Committee of the Board (the “Compensation Committee”) within the
first ninety (90) days of each fiscal year during the Employment Term and communicated to
Executive. Each Annual Incentive will have a target value of $1,100,000 (the “Target”).
Notwithstanding the foregoing, for the Company’s fiscal year ending September 30, 2007, Executive
will be eligible to earn a target incentive award of $275,000 based upon the achievement of
applicable performance criteria established by the Compensation Committee.
(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”). Each
Award Agreement shall provide Executive, for purposes of calculating the portion of the applicable
award, if any, vested on account of the “retirement” (as defined in the applicable Award Agreement)
of Executive, with vesting credit for years of service with the Previous Employer.
(i) Special Grant. As soon as practicable after the Effective Date, Executive will be
granted a special award under the LTIP of 325,000 performance restricted share units (the “Special Grant”), 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.
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(ii) Annual
Award. With respect to each full fiscal year 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
$2,000,000 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. Notwithstanding the foregoing, for the Company’s fiscal year ending
September 30, 2007, and in addition to the Special Grant, Executive shall be granted 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 $500,000 on the date of grant, 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.
(d) Treatment of Previous Employer Deferred Share Units. Executive agrees
to sell, by December 31, 2007, at least 48,560 shares of the Previous Employer common stock
issued to Executive in settlement of deferred share units under the applicable Previous Employer equity incentive plan.
5. Employee Benefits.
(a) Generally. 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
executive officers of the Company, as such plans, policies and arrangements may exist from time to
time.
(b) Airplane Travel. When traveling on Company-related business, Executive will be
entitled to fly on private aircraft, at the sole expense of the Company.
(c) Tax Services. The Company will reimburse Executive for reasonable personal tax
preparation costs paid by Executive for any taxable year in which Executive has income from both
the United States and Canada.
(d) Housing Stipend. The Company will pay Executive, as a housing stipend in order to
assist with Executive’s relocation from Toronto, Canada to Jersey City, New Jersey, $10,000 per
month for twelve (12) months. This housing stipend will be paid periodically in accordance with
the Company’s normal payroll practices and be subject to the usual, required withholdings.
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(e) Relocation Expenses. The Company will reimburse Executive for any reasonable
relocation expenses which are authorized and approved pursuant to such Previous Employer’s normal
and customary relocation services plan.
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 his 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) continued payment of Base Salary for two (2)
years in accordance with the Company’s normal payroll policies; (ii) continued payment of
Executive’s Annual Incentive at the target level applicable during the year of Executive’s
termination for a period of time equal to two (2) years in accordance with the Company’s normal
payroll policies, (iii) 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, (iv) for a period
of two (2) years, 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, 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 (v) performance restricted share units granted under the
LTIP as part of any Annual Awards or the Special Grant will be considered fully earned and vested
and such vested shares will be settled as set forth in the Award Agreement.
(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.
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9. Release of Claims; Non-solicitation and Non-competition; Conditions to Receipt of
Severance; No Duty to Mitigate.
(a) Separation Agreement and Release of Claims. 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.
(b) Non-solicitation and Non-competition. During the Employment Term and the
Restricted Period, Executive will not (without the written consent of the CEO) engage or
participate in any business within any state in the United States, or any province in Canada, 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 (i)
the Previous Employer in any capacity, or (ii) 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 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 Executive do not represent more than 2%
of the outstanding securities of such corporation or other entity;
(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;
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(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.
(d) Other Requirements. Executive’s initial receipt of severance and/or the receipt
of continued severance payments pursuant to Section 8 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 his 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.
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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
his 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.
(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 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 10(d),
Executive will be permitted to disclose Confidential Information if required by a subpoena or court
or administrative order.
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(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.
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
his 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 his 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 his 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;
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(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 his or 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).
(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) The failure of the Board to appoint Executive to the office of Chief Executive Officer of
the Company, as the successor to the Company’s current CEO, if and when the Company’s current CEO
resigns, is terminated or otherwise ceases to hold such office, provided that Executive must remain
employed with the Company for a period of six (6) months after public announcement of the Company’s
current CEO’s termination (and appointment of any individual other than Executive) before any such
“Good Reason” shall be deemed to exist under this Agreement;
(ii) 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;
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(iii) 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;
(iv) 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;
(v) The relocation of Executive to a facility or location more than twenty-five (25) miles
from his current place of employment; or
(vi) 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) Previous Employer. For purposes of this Agreement, “Previous Employer” will mean
The Toronto-Dominion Bank, and any successor corporation.
(h) 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 his 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 his Base
Salary for a period of one (1) year.
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,
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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 Compensation Committee
c/o Corporate Secretary
TD Ameritrade Holding Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, XX 00000
c/o Corporate Secretary
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 Jersey City, New Jersey
before the American Arbitration Association under its National Rules for the Resolution of
Employment Disputes, supplemented by the New Jersey Rules of Civil Procedure. The Parties agree
that the 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. 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.
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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 his 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 in this Agreement to the contrary, if
Executive is a “specified employee” within the meaning of Section 409A of the Code and the
regulations thereunder at the time of any termination of employment, all of the cash payments
required pursuant to Section 8 of this Agreement shall be delayed by six months in order to avoid
the imposition of additional tax under Section 409A of the Code and the regulations thereunder,
provided that any cash payments due to Executive within the first six months after such a
termination of employment will instead be paid in a lump sum six months and one day following such
a termination of employment. Thereafter, any additional payments will continue to be paid in
accordance with the terms and conditions of this Agreement. It is the intent of this Agreement to
comply with the requirements of Section 409A of the Code, and any ambiguities herein will be
interpreted to so comply.
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/ Xxxxxx X. Xxxxxx | ||||
| Date: June 5, 2007 | ||||
| Xxxxxx X. Xxxxxx | ||||
| Chief Executive Officer | ||||
EXECUTIVE:
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| Date: June 5, 2007 | ||||
| Xxxxxxx X. Xxxxxxx | ||||
[SIGNATURE PAGE TO XXXXXXX EMPLOYMENT AGREEMENT]
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Exhibit A
Form
of Separation and Release of Claims Agreement
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