Exhibit 10.25
AMERITRADE HOLDING CORPORATION
1996 LONG-TERM INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR EXECUTIVES
THIS AGREEMENT, made and entered into as of ________(the "Grant Date")
by and between Ameritrade Holding Corporation (the "Company") and ____________
(the "Participant");
WITNESSETH THAT:
WHEREAS, the Company maintains the Ameritrade Holding Corporation 1996
Long-Term Incentive Plan (the "Plan"); and
WHEREAS, the Participant is an employee of the Company and was selected
by the Committee (as defined in the Plan) to receive the grant of an option
under the Plan;
NOW, THEREFORE, the Company and the Participant hereby agree as
follows;
1. Grant: Option Price. This Agreement evidences the grant to the Participant,
pursuant to the terms of the Plan, of an option (the "Option") to purchase a
total of ________ shares of Stock. The Exercise Price of each share subject to
the Option shall be $_______. The Option is not intended to be, and will not be
treated as an "incentive stock option" as that term is used in section 422 of
the Code.
2. Vesting. Subject to the terms and conditions of this Agreement, the Option
shall become vested and exercisable with respect to 1/4 of the shares of Stock
awarded under this Agreement on the first anniversary of the Grant Date, and
shall become vested and exercisable with respect to an additional 1/4 of the
shares of Stock under this Agreement on each subsequent anniversary until such
time as the Option is fully exercisable; provided, however, that no portion of
the Option shall vest or become exercisable after the date on which the
Participant's employment with the Company terminates for any reason or after the
date of a Forfeiture Event (as defined below), whichever is earlier.
3. Exercise. Subject to the restrictions contained herein, after the Option
becomes vested or exercisable pursuant to paragraph 2 and prior to the
Expiration Date (defined below), the Option, to the extent then vested and
exercisable, may be exercised in whole or in part by filing a written notice
with the Secretary of the Company at its corporate headquarters. The exercise
notice must be filed prior to the Expiration Date, must specify the number of
shares of Stock which the Participant elects to purchase and must be accompanied
by payment of the Option Price (including any applicable withholding taxes) for
such shares of Stock indicated by the Participant's election. Payment of the
Option Price (and any applicable withholding taxes) shall be by cash or check
payable to the Company, by delivery of shares of Stock having an aggregate Fair
Market Value (valued as of the date of exercise) that is equal to the Option
Price for the shares of Stock, or any combination thereof. The Participant may
pay the Option Price by
authorizing Ameritrade, Inc. (or such other suitable party designated by the
Company) to sell shares of stock (or a sufficient portion of the shares)
acquired upon exercise of the Option and remit to the Company a sufficient
portion of the sale proceeds to pay the entire Option Price and any tax
withholding resulting from such exercise.
4. Expiration of Option and Vesting and Exercisability Upon Termination and
Change Of Control.
The "Expiration Date" for this Option shall be described below. All italicized
terms in this paragraph 4, unless noted, are as defined in the Participant's
Employment Agreement, effective September 9, 2002 ("Employment Agreement").
a. Notwithstanding the following, in no event shall the Expiration Date
extend beyond the ten-year anniversary of the Grant Date.
b. Upon Death or Disability, the Option shall immediately become 100%
vested and the Expiration Date shall be the one-year anniversary of
the Participant's Date of Termination. In addition, for purposes of
this Option, the Participant's employment with the Company shall be
considered to have terminated because of Disability if, at the time
of termination, the Participant is eligible for benefits under the
applicable Company long-term disability plan.
c. Upon Retirement (as defined below), the Option shall be exercisable
to the extent vested at the time of the termination event, in
accordance with Section 2 of this Agreement, and the Expiration Date
shall be the one-year anniversary of the Participant's Date of
Termination of employment with the Company. A Participant's
employment with the Company shall be considered to have terminated
because of "Retirement" if the Participant's employment terminates,
for reasons other than Cause, after the Participant has attained age
55 and completed at least 10 years of continuous service with the
Company.
d. Upon Termination by the Company for Reasons Other Than Cause or upon
Voluntary Resignation by the Executive for Good Reason or
Termination of Employment Agreement at the end of the Term, if the
Participant complies with the terms of Sections 4 and 5 of the
Employment Agreement, the Option shall be exercisable to the extent
vested at the time of the termination event, in accordance with
Section 2 of this Agreement and the Expiration Date shall be the
one-year anniversary of the Participant's Date of Termination.
e. Upon Voluntary Resignation, if the Participant complies with
Sections 4 and 5 of the Employment Agreement, the Option shall be
exercisable to the extent vested at the time of the termination
event, in accordance with Section 2 of this Agreement, and the
Expiration Date shall be the three-month anniversary of the
Participant's Date of Termination of employment with the Company. If
the Participant does not comply with Sections 4 and 5 of the
Employment
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Agreement and the Option is not forfeited, the Expiration Date shall
be the one-month anniversary of the Date of Termination.
f. Upon Termination by the Company for Cause, if the Participant
complies with Sections 4 and 5 of the Employment Agreement, the
Option shall be exercisable to the extent vested at the time of the
termination event, in accordance with Section 2 of this Agreement,
and the Expiration Date shall be the three-month anniversary of the
Participant's Date of Termination.
g. Upon a Change of Control, the Option shall immediately become 100%
vested; however while the Participant remains employed by the
Company, the Option will only be exercisable to the extent it would
have vested according to paragraph 2 of this Agreement absent a
Change of Control. If the Participant's employment with the Company
is terminated by the Company without Cause or by the Participant for
Good Reason within twelve months that a Change of Control has
occurred, the Expiration Date of the Option shall be the two-year
anniversary of the Participant's Date of Termination. For purposes
of this Section g., the Datek transaction which occurred on
September 9, 2002 does NOT constitute a Change of Control.
4. Restriction on Sale of Shares. The Participant's right to sell any shares
acquired by exercise of this Option shall be subject to the terms,
conditions and restrictions of the Ameritrade equity ownership and
disposition guidelines.
5. Nontransferability. The Option shall not be transferable except by will or
the laws of descent and distribution and shall be exercisable during the
Participant's lifetime only by the Participant.
6. Administration. The authority to manage and control the operation and
administration of this Agreement shall be vested in the Committee and the
Committee shall have all of the powers with respect to this Agreement that
it has with respect to the Plan. Any interpretation of the Agreement by the
Committee and any decision made by it with respect to the Agreement is
final and binding on all persons.
7. Plan Governs. Notwithstanding anything in this Agreement to the contrary,
the terms of this Agreement shall be subject to the terms of the Plan, a
copy of which may be obtained by the Participant from the office of the
Secretary of the Company.
8. Successors. This Agreement shall be binding upon and shall inure to the
benefit of any assignee or successor in the interest of the Company, and
shall be binding upon and inure to the benefits of any estate, legal
representative, beneficiary or heir of the Participant.
9. Employee and Shareholder Status. This Agreement does not constitute a
contract of employment or continued service and does not give the
Participant the right to be retained as an employee of the Company. This
Agreement does not confer upon the Participant or
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any holder thereof any right as a shareholder of the Company prior to the
issuance of Stock pursuant to the exercise of the Option.
10. Amendment and Severability. This Agreement may be amended by written
agreement of the Participant and the Company, subject to the consent of the
Committee, without the consent of any other person. If any provision,
sub-provision or paragraph of this Agreement is found to be unenforceable
by a court of competent jurisdiction, it shall not impair the
enforceability of the other provisions, sub-provisions, and paragraphs.
11. Defined Terms. Unless the context clearly implies or indicates the
contrary, a word, term or phrase used or defined in the Plan is similarly
used or defined for purposes of this Agreement.
12. Forfeiture of Benefits.
a. Forfeiture Event. If a Forfeiture Event occurs, the Participant will
immediately forfeit any remaining part of the Option and to the extent
that he or she has previously exercised any or all of the Option, the
Participant will be immediately obligated to pay the Company the
Forfeited Amount (defined below). A Forfeiture Event shall mean the
earliest of the following events occurring during the "Forfeiture
Period" (defined as the period beginning on the date the Option is
granted and ending upon the termination of the Restricted Period, as
defined in the Employment Agreement):
i. Non-Competition.
1. If the Participant accepts employment with an employer that
is in competition with the Company, unless the Participant's
termination of employment is initiated by the Company for
reasons other than the Participant's misconduct;
2. If the Participant solicits any employee or customer of the
Company to end an existing relationship, contractual or
otherwise, with the Company; or
3. If the Participant engages in any other activity harmful to
the interests of or in competition with the Company.
ii. Violation of Employment Agreement. With respect to any
Participant who is a party to an employment agreement with the
Company, the violation of any provision of such employment
agreement; provided, however, that if the provisions of this
Agreement expressly conflict with the provisions of any
employment agreement, the provisions of the employment agreement
will control.
The Committee, upon recommendation by the Chief Executive Officer
(the "CEO") of the Company (or the senior human resources officer,
if so delegated to such individual by the CEO), shall have the sole
authority to determine whether a
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Forfeiture Event has occurred and, if it has occurred, whether to
waive the resulting forfeiture. The determination by the Committee
shall be final and binding on all parties.
b. Forfeiture. The exercise of any or all of this Option shall be deemed
to be consent to, and authorization of the payment to the Company of
any Forfeited Amount. Payment to the Company of any Forfeited Amount
will be made by any or all of the following methods, at the sole
discretion of the CEO, as required for the Company to recoup the
Forfeited Amount:
i. The Company may subtract any Forfeited Amount from any payments
payable to the Participant by the Company or any related entity
after the Forfeiture Event;
ii. The Participant will pay to the Company any Forfeited Amount
which is not repaid to the Company pursuant to the immediately
preceding paragraph within 30 days of the Forfeiture Event;
and/or
iii. The Participant will return any shares resulting from a stock
option exercise, if not previously sold, to the Company.
c. Forfeited Amount. For purposes of this Option, the Forfeited Amount
shall mean either exercised Option shares or the aggregate income,
including withholding (shall be computed by multiplying the number of
shares purchased upon exercise of the Option, or any part of it,
during the Forfeiture Period by the excess of (1) the Fair Market
Value on the date of exercise of one share of Stock over (2) Exercise
Price) realized by the Participant upon the exercise of all or any
part of the Option during the 36 months immediately preceding the
Forfeiture Event.
* * * * * * *
IN WITNESS WHEREOF, the Participant has hereunto set his or her hand
and the Company has caused these presents to be executed in its name and on its
behalf, all as of the date first above written and the Participant hereby
acknowledges that the terms and conditions of this Agreement have been read and
understood.
PARTICIPANT
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AMERITRADE HOLDING CORPORATION
By:
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Its:
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