TD AMERITRADE HOLDING CORPORATION JOHN R. MACDONALD EMPLOYMENT AGREEMENT
Exhibit 10.3
TD AMERITRADE HOLDING CORPORATION
XXXX X. XXXXXXXXX EMPLOYMENT AGREEMENT
This
Agreement is entered into as of May 23, 2006, by and between TD Ameritrade Holding
Corporation (the “Company”) and Xxxx X. XxxXxxxxx (“Executive”).
(a) Positions and Duties. As of March 1, 2006 (the “Effective Date”), Executive will
serve as Executive Vice President, Chief Financial Officer and Chief Administrative Officer, and
will serve as a member of the Company’s Office of the Chief Executive, 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) 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 of Directors (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.
Executive expects to serve as a member of the Board of Directors of GFI Group Inc. and such service
will not constitute a violation of this Section 1(b).
(i) 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 his current employer (or
any other previous employer) or his membership on any boards of directors.
(c) 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.
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.
(a) Base Salary. Subject to periodic review by the Board, the Company will pay
Executive an annual salary of $400,000 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 Board 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
$960,000 (the “Target”).
(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”).
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(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, 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 which would have become vested
within two (2) years of the end of the calendar year of such termination will be considered earned
and vested and such vested shares will be settled according to the original vesting schedule 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
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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.
(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 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 or 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;
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(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;
(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 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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(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
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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.
(f) The receipt of any severance pursuant to Section 8 will be subject to Executive complying
with the terms of this Section 10.
(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;
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(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;
(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) 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,
provided that if Executive remains a part of the Office of the Chief Executive in a position
comparable with Executive’s skills and position as of the Effective Date, a change to Executive’s
title, and/or changes to the elements of responsibility or duties of Executive (for example,
becoming in charge of a different business unit or line of the Company) will not be considered
significant or Good Reason;
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(ii) 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;
(iii) 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;
(iv) The relocation of Executive to a facility or location more than twenty-five (25) miles
from his current place of employment; or
(v) 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) 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.
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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.
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.
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, including, but not limited to, the Employment Agreement entered
into between Executive and Ameritrade Holding Corporation, dated [DATE]. 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
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Agreement, no party has relied on or made any representation, warranty, inducement, promise,
or understanding that is not in this Agreement.
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.
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COMPANY:
TD AMERITRADE HOLDING CORPORATION
| /s/ Xxxxxx X. Xxxxxx | ||
| Date: May 23, 2006 | ||
Chief Executive Officer |
||
EXECUTIVE: |
||
| /s/ Xxxx X. XxxXxxxxx | ||
/s/
Xxxx X. XxxXxxxxx
|
Date: May 23, 2006 |
[SIGNATURE PAGE TO MACDONALD EMPLOYMENT AGREEMENT]
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Exhibit A
Separation and Release of Claims Agreement
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This Separation and Release of Claims Agreement (“Agreement”) is made by and between
___(“Employee”) and TD Ameritrade Holding Corporation (“Company”) (collectively
referred to as the “Parties”):
WHEREAS, Employee and Company entered into an Employment Agreement dated [DATE] (the
“Employment Agreement”);
(a) The Company agrees to pay Employee pursuant to Section 8 of the Employment Agreement, as
appropriate, subject to Section 9 of the Employment Agreement. Payment shall commence on the first
regular payroll date following the Effective Date. Except as expressly provided in the Employment
Agreement, following the Effective Date Employee shall not be entitled to the accrual of any
employee benefits.
(b) Stock. The Parties agree that Employee’s vesting with respect to those unvested
equity awards outstanding as of the Effective Date shall accelerate pursuant to Section 8 of the
Employment Agreement, as appropriate, subject to Section 9 of the Employment Agreement. All shares
shall continue to be subject to all other terms of the Restricted Stock Unit Agreements.
(c) Benefits. The Company agrees to reimburse Employee for premiums paid for continued
health benefits for Employee (and any eligible dependents) pursuant to Section 8 of the
Employment Agreement, as appropriate, subject to Section 9 of the Employment Agreement.
Except as expressly provided in the Employment Agreement, Employee’s participation in all other
benefits and incidents of employment ceased on the Termination Date. Employee ceased accruing
employee benefits, including, but not limited to, vacation time and paid time off, as of the
Termination Date.
(a) any and all claims relating to or arising from Employee’s employment relationship with the
Company and the termination of that relationship;
(b) any and all claims relating to, or arising from, Employee’s right to purchase, or actual
purchase of shares of stock of the Company, including, without limitation, any claims for fraud,
misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law,
and securities fraud under any state or federal law;
(c) any and all claims under the law of any jurisdiction including, but not limited to,
wrongful discharge of employment; constructive discharge from employment; termination in violation
of public policy; discrimination; breach of contract, both express and implied; breach of a
covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent
or intentional infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic advantage; unfair
business practices; defamation; libel; slander; negligence; personal injury; assault; battery;
invasion of privacy; false imprisonment; and conversion;
(d) any and all claims for violation of any federal, state or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990,
the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit Protection Act; the Massachusetts
Fair Employment Practice Act;
(e) any and all claims for violation of the federal, or any state, constitution;
(f) any and all claims arising out of any other laws and regulations relating to employment or
employment discrimination;
(g) any claim for any loss, cost, damage, or expense arising out of any dispute over the
non-withholding or other tax treatment of any of the proceeds received by Employee as a result of
this Agreement; and
(h) any and all claims for attorneys’ fees and costs.
The Company and Employee agree that the release set forth in this section shall be and remain
in effect in all respects as a complete general release as to the matters released. This release
does not extend to any obligations incurred under this Agreement.
Employee acknowledges and agrees that any breach of any provision of this Agreement shall
constitute a material breach of this Agreement and shall entitle the Company immediately to recover
and cease the severance benefits provided to Employee under this Agreement.
(a) he should consult with an attorney prior to executing this Agreement;
(b) he has up to twenty-one (21) days within which to consider this Agreement;
(c) he has seven (7) days following his execution of this Agreement to revoke this Agreement;
(d) this Agreement shall not be effective until the revocation period has expired; and,
(e) nothing in this Agreement prevents or precludes Employee from challenging or seeking a
determination in good faith of the validity of this waiver under the ADEA, nor does it impose any
condition precedent, penalties or costs for doing so, unless specifically authorized by federal
law.
18. Cooperation in Litigation. Employee agrees to cooperate fully with the Company in
any matters that have or may result in a legal claim against the Company, and of which Employee may
have knowledge as a result of Employee’s employment with the Company. This requires Employee,
without limitation, to (1) make himself available upon reasonable request to provide information
and
assistance to the Company on such matters without additional compensation, except for
Employee’s out-of-pocket costs, and (2) notify the Company promptly of any requests to Employee for
information related to any pending or potential legal claim or litigation involving the Company,
reviewing any such request with a designated representative of the Company prior to disclosing any
such information, and permitting the representative of the Company to be present during any
communication of such information.
24. No Waiver. The failure of any party to insist upon the performance of any of the
terms and conditions in this Agreement, or the failure to prosecute any breach of any of the terms
and conditions of this Agreement, shall not be construed thereafter as a waiver of any such terms
or
conditions. This entire Agreement shall remain in full force and effect as if no such
forbearance or failure of performance had occurred.
26. Governing Law. This Agreement shall be deemed to have been executed and delivered
within the state of New York, and it shall be construed, interpreted, governed, and enforced in
accordance with the laws of the state of New York, without regard to conflict of law principles.
To the extent that either party seeks injunctive relief in any court having jurisdiction for any
claim relating to the alleged misuse or misappropriation of trade secrets or confidential or
proprietary information, each party hereby consents to personal and exclusive jurisdiction and
venue in the state and federal courts of the state of New York.
(a) they have read this Agreement;
(b) they have been represented in the preparation, negotiation, and execution of this
Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such
counsel;
(c) they understand the terms and consequences of this Agreement and of the releases it
contains; and
(d) they are fully aware of the legal and binding effect of this Agreement.
| TD AMERITRADE HOLDING CORPORATION | ||||||
Dated:
|
By | |||||
| [NAME] | ||||||
| [TITLE] | ||||||
| , an individual | ||||||
Dated: |
||||||
