EXHIBIT 10.1
AMERITRADE HOLDING CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") between AMERITRADE
HOLDING CORPORATION, a Delaware corporation (the "Company") and Xxxxxxx Xxxxxxx
(the "Executive"), is made effective on June 7, 2004, the date Executive
commences employment with Company (the "Effective Date").
The Executive is employed as President, Private Client Division.
The Company and the Executive desire to set forth in this Agreement, the
terms, conditions and obligations of the parties with respect to such employment
and this Agreement is intended by the parties to supersede all previous
agreements and understandings, whether written or oral, concerning employment
with the Company and with any subsidiary of the Company;
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.
Accordingly, the Company and the Executive agree as follows:
1. EMPLOYMENT. The Company will employ the Executive as President,
Private Client Division 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 Operating Officer (the "COO"), Chief Executive Officer
(the "CEO") 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 the third anniversary thereof, unless earlier
terminated in accordance with Section 6 below. 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. The Company and the Executive may negotiate a new agreement or renew
this Agreement as may be mutually agreed by the parties. The aforementioned
negotiation or renewal will commence ninety (90) days prior to the end of the
Term. If the Company does not intend to renew this Agreement, it shall notify
the Executive ninety (90) days prior to the end of the Term.
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 $250,000, 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") for the Company's fiscal
year 2004 and subsequent fiscal years during the Term in accordance with
the terms and conditions of the MIP with a target bonus of 80% of the
Executive's annual base salary for each fiscal year (the "Target Bonus").
The Executive's Target Bonus for periods subsequent to 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 80% 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 other
currently maintained, or 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. On his date of hire the Executive shall be
granted nonqualified options on 125,000 shares of the Company with a
strike price equal to the closing price on that date. The Executive will
be eligible for periodic option awards, at the discretion and as
determined by the Compensation Committee from time to time, with a target
of $250,000 in present value, 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. During the period of Executive's
employment, each year of the Term constitutes a full vesting year for the
stock options awarded Executive on his date of hire. Therefore, with
respect to the options granted on Executive's date of hire, Executive will
be 75% vested in the options granted on his date of hire, if he remains
employed through the end of the Term.
(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
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be determined from time to time by the Company in its discretion and
pursuant to the terms of the plan documents governing such Benefits.
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 ("Competitive Business") 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. 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;
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(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, "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 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 his 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
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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 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.
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(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, 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 (as defined
below), the Executive will not be entitled to such prorated Target Bonus
under the MIP, 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.
(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(g), 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
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or inadvertent action not taken in bad faith and
remedied by the Company after receipt of notice given by
the Executive to the Chief Operating Officer or the
Chief Administrative Officer; (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 and no change
in participation as a member of the Executive Management
Team, so long as Executive's position has a status
substantially equal to, and duties and responsibilities
substantially the same as, the position of President,
Private Client Division;
(iii) a reduction in the Executive's then current annual base
salary; or Target Bonus; or
(iv) any relocation of Executive's base office in Omaha,
Nebraska to an office that is more than 75 highway miles
from Omaha, Nebraska.
Upon termination of this Agreement, except for Executive's Voluntary
Resignation or Termination by Company for Cause, or expiration of this
Agreement without renewal and 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 release described in
Section 13 hereof, the Company will provide the Executive with severance
compensation and benefits (in addition to the payments described in
Section 6(b)) as follows:
(vi) 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 $250,000),
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");
(vii) the Executive will receive an amount equal to the Target
Bonus under the MIP, as applicable, for the fiscal year
in which the Date of Termination occurs, payable at such
time as bonuses are generally payable for other
participants under the MIP; and
(viii)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
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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 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) Additional Restricted Period.
At the natural expiration of the Term of this Agreement without renewal,
the Executive will only be required to comply with the Non-competition
provisions set forth in Section 4(a) above for the period indicated by the
Company commencing on the day after the end of the Term and ending on the
date specified by the Company, which shall not be later than the first
anniversary of expiration of the Term, which date the Executive hereby
agrees to in consideration of the Non-Competition Payments provided below
("Additional Restricted Period"). The Company will provide the Executive
with payments (the "Non-Competition Payments") for the duration of the
Additional Restricted Period equal to his then current 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 $250,000), payable pro-rata over
the course of the Additional Restricted Period on regularly scheduled
paydays. The Non-Competition Payments shall be reduced by any payments due
to the Executive under any other severance provision described in Section
6 hereof and Executive agrees to execute and deliver the release described
in Section 13 below.
(g) 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
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, the
Executive's credibility or reputation no longer conforms
to the standard of the Company's executives; or
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(iv) a material 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 a basis for 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 subparagraph (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 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 General
Release and Cooperation Agreement described in Section 13, if
following a Change of Control, the Executive's employment is
terminated by the Company without Cause or is terminated by
the Executive for Good Reason, the amount due to the Executive
in Sections 6(e)(vi) and 6(e)(vii) will be paid in a lump sum
within 30 days following such termination of employment
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in lieu of payment at such times described in Sections
6(e)(vi) and 6(e)(vii).
8. EXCISE TAXES. Anything in this Agreement to the contrary
notwithstanding, if any payment or benefit to which the Executive is entitled
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.
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 he performed 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). In addition, the 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
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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 and in consideration therefor, severance
benefits thereunder will 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 then current address listed in the Executive's human resources file at the
Company. 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 a
copy to Chief Operating Officer
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. Notice may also be personally delivered.
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.
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(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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AMERITRADE HOLDING CORPORATION
By: /S/ XXXX X. XXXXXXXXX
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Chief Operating Officer
/S/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx
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Xxxxxx
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Xxxx, Xxxxx and Zip Code
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