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 Xxxx X. Xxxxxx
(the "Executive"), is made effective February 1, 2004 (the "Effective Date").
The Executive is employed as Executive Vice President, Chief Marketing
Officer.
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 (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;
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 continue to employ the Executive as
Executive Vice President, Chief Marketing 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 her 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 the September 9, 2005, 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 ("Renewal Term" and "Term" collectively referred to as
"Term"). 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 her
services to the Company in accordance with the following:
(a) Base Salary. The Company will pay to the Executive an annual base
salary of $300,000, 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
2004 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 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, with a target of $300,000 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.
(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.
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
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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. 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, "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.
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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 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 she 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 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
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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 her employment for herself or an
employer other than the Company, knowledge which was acquired by her during
the course of her employment with the Company and which is generally known
to persons of her experience in other companies in the same industry.
Subject to Section 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 (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.
(c) Death or Disability. If the Executive becomes physically or mentally
disabled and unable to perform the essential functions of her 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.
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(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 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
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 Executive Vice President, Chief
Marketing 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
(v) the Company's requiring the Executive to travel on Company
business to a substantially greater extent than required
immediately prior to the Effective Date of this Agreement;
or
(vi) non-renewal of this Agreement by the Company by the end of
the Term (as provided in Section 2 above) upon substantially
the same terms and conditions as are set forth herein.
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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:
(vii) the Executive will continue to receive her 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 $300,000), 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");
(viii) the Executive will receive an amount equal to the Target
Bonus under the MIP Plan, 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 Plan; and
(vix) during the Severance Period, if the Executive or any of her
dependents is eligible for and elects COBRA continuation
coverage (as described in Section 4980B of the Internal
Revenue Code of 1986, as amended (the "Code")) under any
Company group medical or dental plan, 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 her 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 her 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 $300,000), payable pro-rata over the
course of the Additional Restricted Period on
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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 her
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
(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 she 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
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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)(vii) and 6(e)(viii) 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)(vii) and 6(e)(viii).
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, she 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 her 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 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 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 a copy to
Chief Executive 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.
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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.
AMERITRADE HOLDING CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Chief Executive Officer
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/s/ Xxxx X. Xxxxxx
-------------------------
Xxxx X. Xxxxxx
-------------------------
Xxxxxx
-------------------------
Xxxx, Xxxxx and Zip Code
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