TD AMERITRADE HOLDING CORPORATION
JOSEPH H. MOGLIA
This Agreement was originally entered into as of May 19, 2006, by and between TD AmeritradeHolding Corporation (the Company) and Joseph H. Moglia (Executive), and is hereby amendedeffective as of June 23, 2006.
1. Duties and Scope of Employment.
(a) Positions and Duties. As of May 19, 2006 (the Effective Date), Executive willserve as Chief Executive Officer, reporting to the Companys Board of Directors (the Board). Theperiod Executive is employed by the Company under this Agreement is referred to herein as theEmployment Term.
(b) Board Membership. Executive was appointed to serve as a member of the Board priorto the Effective Date. During the Employment Term, at each annual meeting of the Companysstockholders at which Executives term as a member of the Board has otherwise expired, the Companywill nominate Executive to serve as a member of the Board. Executives service as a member of theBoard will be subject to any required stockholder approval. Upon the termination of Executivesemployment for any reason, unless otherwise requested by the Board and agreed to by Executive,Executive will be deemed to have resigned from the Board (and any boards of subsidiaries)voluntarily, without any further required action by Executive, as of the end of Executivesemployment and Executive, at the Boards request, will execute any reasonable documents necessaryto reflect his resignation.
(c) Obligations. During the Employment Term, Executive will devote Executives fullbusiness efforts and time to the Company and will use good faith efforts to discharge Executivesobligations under this Agreement to the best of Executives ability and in accordance with each ofthe Companys corporate guidance and ethics guidelines, conflict of interests policies and code ofconduct. For the duration of the Employment Term, Executive agrees not to actively engage in anyother employment, occupation, or consulting activity for any direct or indirect remunerationwithout the prior approval of the Audit Committee of the Board (which approval will not beunreasonably withheld); provided, however, that Executive may, without the approval of the AuditCommittee of the Board, serve in any capacity with any civic, educational, or charitableorganization, provided such services do not interfere (other than in an insubstantial manner) withExecutives obligations to Company. Executive expects to serve as a member of the Board ofDirectors of AXA Financial, Inc. and of its subsidiary, The Equitable Life Assurance Society of theU.S., and the parties agree that such service will not constitute a violation of this Section 1(c).
(i) Executive hereby represents and warrants to the Company that Executive is not party to anycontract, understanding, agreement or policy, written or otherwise, that would be breached byExecutives entering into, or performing services under, this Agreement. Executive furtherrepresents that he has disclosed to the Company all threatened, pending, or actual claims that areunresolved and still outstanding as of the Effective Date, in each case, against Executive of whichhe is aware, if any, as a result of his employment with his previous employer or his membership on any boards of directors (other than the Board or its affiliates,predecessors or subsidiaries).
(d) Other Entities. Executive agrees to serve, without additional compensation, as anofficer and director for each of the Companys subsidiaries, partnerships, joint ventures, limitedliability companies and other affiliates, including entities in which the Company has a significantinvestment as determined by the Company. As used in this Agreement, the term affiliates willinclude any entity controlled by, controlling, or under common control of the Company. The partiesagree that the indemnification, contribution and insurance rights of Executive referenced inSection 12 will also apply to Executives activities under this Section 1(d).
2. At-Will Employment. Executive and the Company agree that Executives employmentwith the Company constitutes at-will employment. Executive and the Company acknowledge that thisemployment relationship may be terminated at any time, upon written notice to the other party, withor 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 and other paymentsand benefits depending upon the circumstances of Executives termination of employment.
3. Term of Agreement. This Agreement will have a total term of five (5) years (theTerm of the Agreement). The Term of the Agreement will be divided into two periods, with aninitial period of three (3) years commencing on the Effective Date (the Initial Term) and anadditional two (2) year period (the Additional Term) commencing upon the completion of theInitial Term. On the third anniversary of the Effective Date, this Agreement automatically willrenew for the Additional Term unless either party provides the other party with written notice ofnon-renewal at least sixty (60) days prior to the date of automatic renewal.
(a) Base Salary. As of March 1, 2006, the Company will pay Executive an annual salaryof $1,000,000 as compensation for his services (such annual salary, as is then effective, to bereferred to herein as Base Salary). The Base Salary will be paid periodically in accordance withthe Companys normal payroll practices and be subject to the usual, required withholdings.
(b) Annual Incentive. With respect to each full fiscal year during the EmploymentTerm, Executive will be eligible to participate in the Ameritrade Holding Corporation ManagementIncentive Plan (MIP), pursuant to which Executive will be eligible to earn an annual incentiveaward (the Annual Incentive) based upon the achievement of applicable performance criteriaestablished in good faith by the Board within the first ninety (90) days of each fiscal year duringthe Employment Term and communicated in writing to Executive within such ninety (90) day period.Each Annual Incentive will have a target value of $3,000,000 (the Target).
(c) Equity Awards. During the Employment Term, Executive will be eligible toparticipate in the Ameritrade Holding Corporation 1996 Long-Term Incentive Plan (the LTIP).
(i) Special Grant. On March 10, 2006, Executive was granted a special award under theLTIP of 580,550 performance restricted share units (the Special Grant). The Special Grant willbe scheduled to vest and be settled in accordance with the performance criteria and vestingschedule set forth on Exhibit B of the applicable Special Grant Award Agreement.
Notwithstanding the foregoing, this Special Grant was made contingent upon Executive andCompany executing this Agreement by May 23, 2006. In the event this Agreement is not executed byExecutive and the Company by May 23, 2006, Executive will forfeit the Special Grant.
(ii) Annual Award. With respect to each full fiscal year during the Employment Term,Executive will be eligible for an award under the LTIP of performance restricted share units with atarget value, determined by the Company pursuant to a reasonable and uniform methodology, equal to$6,000,000 on the date of grant (the Annual Award), and will be scheduled to vest and be settledin accordance with the applicable performance criteria and vesting schedule provided in theapplicable Award Agreement.
(iii) Should any conflict or inconsistency exist between the terms of this Agreement and theterms of the Special Grant or the Annual Award, the terms of this Agreement will prevail.
5. Employee Benefits.
(a) Generally. Executive will be eligible to participate in accordance with theterms of all Company employee benefit plans, policies and arrangements that are applicable to otherexecutive officers of the Company, as such plans, policies and arrangements may exist from time totime.
(b) Airplane Travel. When traveling on Company-related business, Executive will beentitled to fly on private aircraft, at the sole expense of the Company.
6. Expenses. The Company will reimburse Executive for reasonable travel,entertainment and other expenses incurred by Executive in the furtherance of the performance ofExecutives duties hereunder, in accordance with the Companys expense reimbursement policy withrespect to all executive officers of the Company as in effect from time to time.
7. Termination of Employment. In the event Executives employment with the Companyterminates for any reason, Executive will be entitled to any (a) unpaid Base Salary accrued up tothe effective date of termination, (b) unpaid, but earned, Annual Incentive for any completedfiscal year as of his termination of employment, (c) pay for accrued but unused vacation, (d)benefits or compensation as provided under the terms of any employee benefit and compensationagreements or plans applicable to Executive, (e) unreimbursed business expenses required to bereimbursed to Executive, (f) rights to indemnification and contribution Executive may have underthe Companys Articles of Incorporation, Bylaws, the Agreement, or separate indemnificationagreement, as applicable, and (g) payments and reimbursements under Sections 10 and 17 hereof. Thepayments and benefits set forth in this Section 7 will be in addition to the applicable paymentsand benefits set forth in Section 8.
(a) Termination Without Cause, Resignation for Good Reason, or Company Notification ofNon-Renewal During the Initial Term. If during the Initial Term Executives employment isterminated by the Company without Cause, if Executive resigns for Good Reason, or if the Companynotifies Executive of its intent not to renew the Agreement for the Additional Term, then, subjectto Sections 9 and 10, and in addition to the payments in Section 7, Executive will receive: (i)continued payment of Base Salary for the Severance Period in accordance with the Companys normalpayroll policies; (ii) continued payment of Executives Annual Incentive at the target levelapplicable during the fiscal year of Executives termination for a period of time equal to theSeverance Period in accordance with the Companys normal payroll policies with the form of suchpayout identical to that received by the other participants in the MIP for such year; (iii) thecurrent fiscal years Annual Incentive pro-rated to the date of termination, with such pro-ratedamount to be payable within thirty (30) days after termination and calculated by multiplying thecurrent fiscal years target incentive compensation by a fraction with a numerator equal to thenumber of days between the start of the current fiscal year and the date of termination and adenominator equal to 365 with the form of such payout identical to that received by the otherparticipants in the MIP for such year; (iv) the payment in cash of the value (i.e., $6,000,000 peryear) of any Annual Awards scheduled to be granted to Executive (but not yet so granted) during theInitial Term, payable within thirty (30) days after such termination; and (v) performancerestricted share units granted under the LTIP as part of any Annual Awards or the Special Grantwill be fully earned and the actual number of performance restricted share units which will beconsidered vested (in addition to those which vested in accordance with their terms) will bedetermined (1) by actual performance for any completed performance period through the date ofExecutives termination and (2) as if actual performance equaled target performance, as specifiedin the applicable Award Agreement, for any incomplete or remaining performance periods afterExecutives termination. The vested performance restricted share units will be settled in sharesof Company common stock on the original settlement date as forth in the Award Agreement (withoutregard to such termination).
(b) Termination Without Cause or Resignation for Good Reason During the AdditionalTerm. If during the Additional Term Executives employment is terminated by the Companywithout Cause or if Executive resigns for Good Reason, then, subject to Sections 9 and 10, and inaddition to the payments in Section 7, Executive will receive: (i) continued payment of Base Salaryfor the Severance Period in accordance with the Companys normal payroll policies; (ii) continuedpayment of Executives Annual Incentive at the target level applicable during the fiscal year ofExecutives termination for a period of time equal to the Severance Period in accordance with theCompanys normal payroll policies with the form of such payout identical to that received by theother participants in the MIP for such year; (iii) the current fiscal years Annual Incentivepro-rated to the date of termination, with such pro-rated amount to be payable within thirty (30)days after such termination and calculated by multiplying the current fiscal years targetincentive compensation by a fraction with a numerator equal to the number of days between the startof the current fiscal year and the date of termination and a denominator equal to 365 with the formof such payout identical to that received by the other participants in the MIP for such year; (iv)the payment in cash, payable within thirty (30) days after such termination, of the value (i.e.,$6,000,000 per year) of any Annual Awards scheduled to be granted to Executive (but not yet sogranted) during the Additional Term; and (v) performance restricted share units granted under theLTIP as part of any Annual Awards will be fully earned and the actual number of performancerestricted share units which will be considered vested
(in addition to those which vested in accordance with their terms) will be determined (1) byactual performance for any completed performance period through the date of Executives terminationand (2) as if actual performance equaled target performance, as specified in the applicable AwardAgreement, for any incomplete or remaining performance periods after Executives termination. Thevested performance restricted share units will be settled in shares of Company common stock on theoriginal settlement date as forth in the Award Agreement (without regard to such termination).
(c) Termination Without Cause or Resignation for Good Reason During the Term of theAgreement in Connection with a Change of Control. If during the Term of the AgreementExecutives employment is terminated by the Company without Cause or if Executive resigns for GoodReason or the Company elects not to renew the Agreement for the Additional Term and suchtermination or non-renewal is in Connection with a Change of Control, then, subject to Sections 9and 10, and in addition to the payments in Section 7, Executive will receive in lieu of thebenefits described in Sections 8(a) and (b): (i) continued payment of Base Salary for three (3)years after such termination, payable in accordance with the Companys normal payroll policies;(ii) continued payment of Executives Annual Incentive at the target level applicable during thefiscal year of Executives termination for three (3) years after such termination, payable inaccordance with the Companys normal payroll policies with the form of such payout identical tothat received by the other participants in the MIP for such year; (iii) the current fiscal yearsAnnual Incentive pro-rated to the date of termination, with such pro-rated amount to be payablewithin thirty (30) days after such termination and calculated by multiplying the current fiscalyears target incentive compensation by a fraction with a numerator equal to the number of daysbetween the start of the current fiscal year and the date of termination and a denominator equal to365 with the form of such payout identical to that received by the other participants in the MIPfor such year; (iv) the payment in cash of the value (i.e., $18,000,000) of three (3) years ofAnnual Awards, payable within thirty (30) days after such termination; and (v) performancerestricted share units granted under the LTIP as part of any Annual Awards or the Special Grantwill be fully earned and the actual number of performance restricted share units which will beconsidered vested (in addition to those which vested in accordance with their terms) will bedetermined (1) by actual performance for any completed performance period through the date ofExecutives termination and (2) as if actual performance equaled target performance, as specifiedin the applicable Award Agreement, for any incomplete or remaining performance periods afterExecutives termination. The vested performance restricted share units will be settled in sharesof Company common stock on the original settlement date as forth in the Award Agreement (withoutregard to such termination).
(d) Termination Without Cause, Resignation for Good Reason During the Term of theAgreement, Voluntary Termination Upon the Completion of the Initial Term, Voluntary TerminationDuring the Additional Term, or the Companys Non-Renewal of the Agreement for the AdditionalTerm. If Executive (i) is terminated without Cause during the Term of the Agreement, (ii)resigns for Good Reason during the Term of the Agreement, (iii) voluntarily terminates hisemployment upon the completion of the Initial Term, (iv) voluntarily terminates his employmentduring the Additional Term (other than a termination in which Executive does not provide theCompany with sixty (60) days advance written notice of his termination), or (v) if the Companyelects not to renew the Agreement for the Additional Term, then, in addition to any other paymentsor benefits described in the applicable sections (including Section 7 and the other applicableparagraphs of this Section 8) of this Agreement, Executive will receive at the sole expense of theCompany: (i) an office at Company headquarters or at a location of Executives choosing with thecost and size of such office to be
reasonably determined by the Audit Committee of the Board, for a period of five (5) yearsfollowing the date of Executives termination; (ii) an experienced full-time personal executiveassistant employed by the Company and covered by the Companys benefits plans as in effect fromtime to time, for a period of five (5) years following the date of Executives termination withsuch expense to the Company to be reasonably determined by the Audit Committee of the Board andExecutive; (iii) post-retirement medical coverage for Executive, his spouse and Executiveseligible dependents under the Companys benefit plans for the life of Executive, or for the life ofExecutives spouse if she survives Executive, with such coverage to be secondary to ExecutivesMedicare benefits, with such benefits to be comparable to the terms of all Company medical plans,policies and arrangements that are applicable to other executive officers of the Company (exceptthat Executives spouse will also receive coverage for the remainder of her life), as such plans,policies and arrangements may exist from time to time, and (iv) use of a private aircraft whentraveling at the Companys request.
(e) Voluntary Termination Without Good Reason During the Initial Term. If Executivevoluntarily terminates his employment without Good Reason during the Initial Term, then, except asprovided in Section 7, (i) Executive will forfeit his Annual Incentive award for the fiscal year inwhich the termination occurs, and (ii) Executive will forfeit all unvested performance restrictedshare units previously granted as part of the Special Grant or any Annual Awards under the LTIP.
(f) Voluntary Termination During the Additional Term. In addition to the payments andbenefits in Section 7 and Section 8(d), if Executive voluntarily terminates his employment duringthe Additional Term for any reason (for avoidance of doubt, not including a termination by theCompany for Cause or termination by Executive for Good Reason), then, subject to Sections 9 and 10and subject to Executive providing the Board with written notice of his resignation at least sixtycalendar (60) days prior to the date of termination, any Annual Awards granted under the LTIP willbe considered earned and will continue to vest as if actual performance equaled target performanceand will be settled according to the original settlement date as set forth in the Award Agreement(without regard to any such termination).
(g) Termination due to Death or Disability. In the event of a termination ofExecutives employment during the Employment Term due to death or Disability, then, subject toSections 9 and 10, and in addition to the payments in Section 7, Executive will be entitled toreceive (i) the current years Annual Incentive pro-rated to the date of termination, with suchpro-rated amount to be calculated by multiplying the current fiscal years target incentivecompensation by a fraction with a numerator equal to the number of days between the start of thecurrent fiscal year and the date of termination and a denominator equal to 365, and (ii)performance restricted share units granted under the LTIP as part of any Annual Awards or theSpecial Grant will be governed by the applicable (death or disability) provision of the AwardAgreement.
9. Conditions to Receipt of Severance; No Duty to Mitigate.
(a) Separation Agreement and Release of Claims. The receipt of any severance pursuantto Section 8 will be subject to Executive signing and not revoking a separation and release ofclaims agreement in substantially the form attached as Exhibit A, but with any appropriatereasonable modifications, reflecting changes in applicable law, as is necessary to provide theCompany 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 agreementbecomes effective. The Company agrees that it will execute and deliver to Executive saidseparation and release of claims agreement no later than eight (8) days after it receives a copy ofsuch agreement executed by Executive. Company agrees that it will be bound by such separation andrelease of claims agreement and that same will become effective from and after the Effective Datethereof (as defined in Section 28 of such separation and release of claims agreement), even ifCompany fails or refuses to execute and deliver same to Executive.
(b) Non-solicitation and Non-competition. The receipt of any severance pursuant toSection 8 will be subject to, during the Employment Term and the Restricted Period, Executive not(without the written consent of the Board) engaging or participating in any business within anystate 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 capacitycalling for the rendition of personal services or acts of management, operation or control) whichis engaged in any activities or business competitive with any of the primary businesses conductedby the Company or any of its Affiliates (as defined below). For purposes of this Agreement, theterm primary businesses is defined as an on-line brokerage business, including active trader andlong term investor client segments, and also includes any other business conducted by the Companyat the date of termination (unless such business is de minimis as compared to the on-line brokeragebusiness) and 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 priorto the date of termination (collectively a Competitive Business). Provided that this restrictionwill 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 ofrevenue and/or resources, and (ii) Executives involvement with the company excludes, directly orindirectly, the on-line brokerage business during the Restriction Period. For purposes of thisSection 9, a business shall be considered de minimis if (i) its revenues constitute less than 10%of the total revenues of the entity, (ii) the employees working in the business comprise less than10% of the total employees of the entity and (iii) the marketing spent for the business is lessthan 10% of the total marketing spent of the entity, in each case on a consolidated basis.Notwithstanding the foregoing, Executive may own securities of a Competitive Business so long asthe securities of such corporation or other entity are listed on a national securities exchange oron the NASDAQ National Market and the securities owned directly or indirectly by Executive do notrepresent 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 mayengage or participate in, will directly or indirectly, (A) knowingly induce any customer or vendorof the Company or of corporations or businesses which directly or indirectly are controlled by theCompany (collectively, the Affiliates) to patronize any Competitive Business; (B) knowinglyrequest or advise any customer or vendor to withdraw, curtail or cancel such customers or vendorsbusiness with the Company or any of its Affiliates; or (C) compete with the Company or any of itsAffiliates in merging with or acquiring any other company or business (whether by a purchase ofstock or other equity interests, or a purchase of assets or otherwise) which is a CompetitiveBusiness. Subsection (A) above will not apply to a customer or vendor that was already a customeror vendor of the Competitive Business at the time Executives employment with the Company isterminated, and will only apply to vendors that supply products or services that are
by their nature specialized and significant to the Company in relation to any of the primarybusinesses of the Company at the time of termination.
(ii) During the Restricted Period, neither Executive nor any business in which Executive mayengage or participate in will (A) knowingly hire, solicit for hire or attempt to hire any keyemployee of the Company or any of its Affiliates, or (B) encourage any key employee of the Companyor any of its Affiliates to terminate such employment. For purposes of this Agreement, keyemployee means current employees whose base annual salary exceeds $200,000 as well as anyoneemployed by the Company or any of its Affiliates within the prior six (6) months from Executivesdate of termination whose base annual salary exceeds $200,000; provided, however, that thisprovision will not preclude any business in which Executive may engage or participate in fromsoliciting any such employee by means of or hiring any such employee who responds to a publicannouncement 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 exceedthe time, geographic or occupational limitations permitted by applicable laws, then such provisionswill and are hereby reformed to the maximum time, geographic or occupational limitations permittedby applicable law.
(c) Nondisparagement. During the Employment Term and Restricted Period, Executivewill not knowingly disparage, criticize, or otherwise make any derogatory statements regarding theCompany, its directors, or its officers. The Company will instruct its officers and directors tonot knowingly disparage, criticize, or otherwise make any derogatory statements regarding Executiveduring the Employment Term and Restricted Period. Notwithstanding the foregoing, nothing containedin this agreement will be deemed to restrict Executive, the Company or any of the Companys currentor former officers and/or directors from providing information to any governmental or regulatoryagency (or in any way limit the content of any such information) to the extent they are requestedor required to provide such information pursuant to applicable law or regulation.
(d) Other Requirements. Executives receipt of continued severance payments will besubject to Executive continuing to comply 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 inmaterial default of its payment and reimbursement obligations under Sections 7, 8, 10, or 17 ofthis Agreement. Notwithstanding the foregoing, the Company will not be considered to be in defaultof its payments and reimbursement obligations unless Executive provides written notice to the Boardsetting 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 anypayment or consideration contemplated by this Agreement, nor will any earnings that Executive mayreceive from any other source reduce any such payment or consideration.
(f) Inadvertence. Notwithstanding anything in this Section 9 (or any other provision)of this Agreement to the contrary, any inadvertent violation by Executive of any of the provisionsof Section 9(b)(i) or 9(b)(ii) which Executive believed in good faith was not a violation of suchSections
and any violation by any business in which Executive may engage or participate of any of theprovisions of Section 9(b)(i) or 9(b)(ii) which violation was done without the Executivesknowledge and without the Executives direct or indirect participation or encouragement shall notresult in the cessation of Executives severance payments hereunder (but Executive shall remainliable for the Companys direct damages, if any, resulting from any such violation by Executive).
10. Confidential Information and Intellectual Property.
(a) Except as may be required by law or legal process, or except to the extent required toperform Executives duties and responsibilities hereunder, Executive will keep secret andconfidential indefinitely, so long as same remains secret and confidential, all non-publicconfidential information (including, without limitation, information regarding cost of newaccounts, 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 theCompany and its affiliates which was acquired by or disclosed to Executive during the course ofExecutives employment with the Company (Confidential Information) and not use in any manner ordisclose 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 theCompanys earlier request, Executive will promptly return to the Company (or destroy if so directedby 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 affiliatesobtained by Executive during the course of his employment with the Company and not keep any copiesthereof.
(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 theCompany, including such of the foregoing items conceived during the course of employment which aredeveloped or perfected after Executives termination of employment, are owned by the Company(Company IP). Executive assigns any and all right, title and interest he may have to Company IPto the Company and will promptly assist the Company or its designee, at the Companys expense, toobtain patents, trademarks, copyrights and service marks concerning Company IP made by Executiveand Executive will promptly execute all reasonable documents prepared by the Company or itsdesignee and take all other reasonable actions which are necessary or appropriate to secure to theCompany and its affiliates the benefits of Company IP. Such patents, trademarks, copyrights andservice marks will at all times be the property of the Company and its affiliates. Executivepromptly will keep the Company informed of, and promptly will execute such assignments prepared bythe Company or its designee as may be necessary to transfer to the Company or its affiliates thebenefits of, any Company IP. The Company will promptly reimburse Executive for all costs, fees(including reasonable attorney fees) and expenses incurred by him in connection with hisobligations and undertakings in this paragraph (c) and in paragraph (d) below.
(d) To the extent that any court or agency seeks to require Executive to disclose ConfidentialInformation, Executive promptly will inform the Company and take reasonable steps, at the Companysexpense, 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 torespond to such court or agency. To the extent Executive obtains information on behalf of theCompany or any of its affiliates that Executive knows is subject to attorney-client privilege as tothe Companys attorneys, Executive will promptly inform the Company and take reasonable steps, atthe Companys expense, to endeavor to maintain the confidentiality of such information and topreserve such privilege.
(e) Confidential Information does not include information in the public domain or informationwhich has been released to the public by the Company. Nothing in this Section 10 will be construedso as to prevent Executive from using, in connection with his employment for himself or an employerother than the Company, knowledge which was acquired by him during the course of his employmentwith the Company and which is generally known to persons of his experience in other companies inthe same industry. Subject to Section 10(d), Executive will be permitted to disclose ConfidentialInformation 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 complyingwith the terms of this Section 10.
(a) Award Agreement. For purposes of this Agreement, Award Agreement will mean theform of award agreement entered into between Executive and the Company in connection with theSpecial Grant and Annual Awards.
(b) Cause. For purposes of this Agreement, Cause will mean Executives convictionof, or plea of nolo contendere to, a criminal offense arising out of a breach of trust,embezzlement or fraud committed against the Company by Executive in the course of Executivesemployment with the Company.
(c) Change of Control. For purposes of this Agreement, Change of Control will havethe meaning set forth in the LTIP.
(d) Disability. For purposes of this Agreement, Disability means, by reason of anymedically determinable physical or mental impairment which prevents Executive from performing hismaterial duties under this Agreement, with reasonable accommodation, on a substantially full timebasis for not less than one hundred eighty (180) consecutive calendar days.
(e) Good Reason. For purposes of this Agreement, Good Reason means the occurrenceof any of the following, without Executives express written consent:
(i) The appointment of any individual other than Executive as Chief Executive Officer of theCompany;
(ii) Any failure by the Company to provide Executive with the reporting relationship asprovided in Section 1(a) or any material and adverse reduction in Executives reportingrelationship other than any isolated, insubstantial and inadvertent failure by the Company that isnot in bad faith and is cured promptly on Executive giving the Company notice of such failure;
(iii) A material reduction in the kind or level of employee benefits to which Executive isentitled immediately prior to such reduction with the result that Executives overall benefitspackage is significantly reduced. Notwithstanding the foregoing, a one-time reduction that also isapplied to substantially all other executive officers of the Company and that reduces the level ofemployee benefits by a percentage reduction of 10% or less will not constitute Good Reason;
(iv) A reduction (even if permitted under the applicable plan documents or Award Agreement orAnnual Incentive) in Executives Base Salary, Target Annual Incentive, Special Grant, or AnnualAward as in effect immediately prior to such reduction. Notwithstanding the foregoing, a one-timereduction that also is applied (and continues to apply) to substantially all other executiveofficers of the Company and which one-time reduction reduces any of the Base Salary, Target AnnualIncentive, Special Grant, or Annual Award by a percentage reduction of 10% or less in the aggregatewill not constitute Good Reason. Notwithstanding anything in this Section 11(e)(iv) to thecontrary, any such reduction (even if permitted under the applicable plan documents or AwardAgreement or Annual Incentive) will not reduce or otherwise limit the Companys obligations underSection 8 of this Agreement;
(v) The relocation of Executive to a facility or location more than twenty-five (25) milesfrom his current place of employment; or
(vi) The failure of the Company to obtain the assumption of the Agreement by a successor.
The failure of the Companys stockholders to elect or reelect Executive to the Board will notconstitute Good Reason for purposes of this Agreement.
(f) In Connection with a Change of Control. For purposes of this Agreement, atermination of Executives employment with the Company is in Connection with a Change of Controlif Executives employment is terminated within twelve (12) months following a Change of Control, orif during the Initial Term the Company elects not to renew this Agreement for the Additional Termand a Change of Control occurs within ninety (90) days thereafter, or if the Company terminatesExecutives employment without Cause or if Executive terminates his employment for Good Reasonduring the period commencing on the day the Company enters into an agreement in principle withrespect to a Change of Control and ending on the day following the closing of such Change ofControl.
(g) Restricted Period. For purposes of this Agreement, if Executive is terminatedduring the Initial Term, Restricted Period will mean the greater of: (i) the period of timecommencing on the date of the termination of Executives employment and continuing for theremainder of the Initial Term, or (ii) one (1) year. If Executive is terminated during theAdditional Term, Restricted Period will mean the greater of: (i) the period of time commencing onthe date of the termination of Executives employment and continuing for the remainder of theAdditional Term or, (ii) six (6) months. If Executive is terminated and such termination is inConnection with a Change of Control, the Restricted Period will equal eighteen (18) months. In thecase of a termination upon the completion of the Term of the Agreement, the Restricted Period willequal six (6) months.
(h) Severance Period. For purposes of this Agreement, if Executive is terminatedduring the Initial Term, Severance Period will mean the greater of: (i) the period of timecommencing on the date of the termination of Executives employment and continuing for theremainder of the Initial Term, or (ii) one (1) year. If Executive is terminated during theAdditional Term, Severance Period will mean the greater of: (i) the period of time commencing onthe date of the termination of Executives employment and continuing for the remainder of theAdditional Term or, (ii) one (1) year.
12. Indemnification. Subject to applicable law, Executive will be providedindemnification and contribution to the maximum extent permitted by the Companys Articles ofIncorporation or Bylaws, including, if applicable, any directors and officers insurance policies,with such indemnification and contribution to be on terms determined by the Board or any of itscommittees, but on terms no less favorable than provided to any other Company executive officer ordirector and subject to the terms of any separate written indemnification agreement. This Section12 will apply to claims made during and/or after the Employment Term to the extent such claimsrelate to any period Executive was employed by the Company or any of its subsidiaries, predecessorsor affiliates.
13. Assignment. This Agreement will be binding upon and inure to the benefit of (a)the heirs, executors and legal representatives of Executive upon Executives death, and (b) anysuccessor of the Company. Any such successor of the Company will be deemed substituted for theCompany under the terms of this Agreement for all purposes. For this purpose, successor meansany person, firm, corporation, or other business entity which at any time, whether by purchase,merger, or otherwise, directly or indirectly acquires all or substantially all of the assets orbusiness of the Company. None of the rights of Executive to receive any form of compensationpayable pursuant to this Agreement may be assigned or transferred except by will or the laws ofdescent and distribution. Any other attempted assignment, transfer, conveyance, or otherdisposition of Executives right to compensation or other benefits will be null and void.
14. Notices. All notices, requests, demands and other communications called forhereunder will be in writing and will be deemed given (a) on the date of delivery if deliveredpersonally, (b) one (1) day after being sent overnight by a well established commercial overnightservice, or (c) four (4) days after being mailed by registered or certified mail, return receiptrequested, prepaid and addressed to the parties or their successors at the following addresses, orat such other addresses as the parties may later designate in writing:
If to the Company:
Attn: Chairman of the Compensation Committee
c/o Corporate Secretary
TD Ameritrade Holding Corporation
4211 South 102nd Street
Omaha, NE 68127
c/o Corporate Secretary
TD Ameritrade Holding Corporation
4211 South 102nd Street
Omaha, NE 68127
If to Executive:
at the last residential address known by the Company.
15. Severability. If any provision hereof becomes or is declared by a court ofcompetent jurisdiction to be illegal, unenforceable, or void, this Agreement will continue in fullforce and effect without said provision.
16. Arbitration. The Parties agree that any and all disputes arising out of the termsof this Agreement, Executives employment by the Company, Executives service as an officer ordirector of the Company, or Executives compensation and benefits, their interpretation and any ofthe matters herein released, will be subject to binding arbitration in Omaha, Nebraska before theAmerican Arbitration Association under its National Rules for the Resolution of EmploymentDisputes, supplemented by the Nebraska Rules of Civil Procedure. The Parties agree that theprevailing party in any arbitration will be entitled to injunctive relief in any court of competentjurisdiction to enforce the arbitration award. The Parties hereby agree to waive their right tohave any dispute between them resolved in a court of law by a judge or jury. This paragraph willnot prevent either party from seeking injunctive relief (or any other provisional remedy) from anycourt having jurisdiction over the Parties and the subject matter of their dispute relating toobligations under this Agreement.
17. Legal and Tax Expenses. The Company will reimburse Executive for reasonable legalfees and expenses incurred by him in connection with the negotiation, preparation and execution ofthis Agreement and Exhibit A hereto (including any amendments thereto sought by the Company afterthe Effective Date.
18. Integration. This Agreement and the standard forms of equity award grant thatdescribe Executives outstanding equity awards, represents the entire agreement and understandingbetween the parties as to the subject matter herein and supersedes all prior or contemporaneousagreements whether written or oral, including, but not limited to, the Employment Agreement enteredinto between Executive and Ameritrade Holding Corporation dated March 1, 2001, as amended andrestated and neither party will have any further obligations under such agreement. No waiver,alteration, or modification of any of the provisions of this Agreement will be binding unless in awriting and signed by duly authorized representatives of the parties hereto. In entering into thisAgreement, no party has relied on or made any representation, warranty, inducement, promise, orunderstanding that is not in this Agreement. Notwithstanding anything herein to the contrary,nothing in this Agreement will limit or waive any of Executives existing rights with respect (a)to options, awards or other compensation granted or awarded to Executive prior to the EffectiveDate, or (b) any accrued but unpaid salary, benefits, compensation or expenses.
19. Waiver of Breach. The waiver of a breach of any term or provision of thisAgreement, which must be in writing, will not operate as or be construed to be a waiver of anyother previous or subsequent breach of this Agreement.
20. Survival. The Companys and Executives responsibilities under Sections 7, 8, 9,10, 12 and 17 will survive the termination of this Agreement.
21. Headings. All captions and Section headings used in this Agreement are forconvenient reference only and do not form a part of this Agreement.
22. Tax Withholding. All payments made pursuant to this Agreement will be subject towithholding of applicable taxes.
23. Governing Law. This Agreement will be governed by the laws of the State of NewYork without regard to its conflict of laws provisions.
24. Acknowledgment. Executive acknowledges that he has had the opportunity to discussthis matter with and obtain advice from his private attorney, has had sufficient time to, and hascarefully read and fully understands all the provisions of this Agreement, and is knowingly andvoluntarily entering into this Agreement.
25. Code Section 409A. Notwithstanding anything to the contrary in this Agreement, ifthe Company reasonably determines that Section 409A of the Code will result in the imposition ofadditional tax to an earlier payment of any severance or other benefits otherwise due to Executiveon or within the six (6) month period following Executives termination, the severance benefitswill accrue during such six (6) month period and will become payable in a lump sum payment on thedate six (6) months and one (1) day following the date of Executives termination. All subsequentpayments, if any, will be payable as provided in this Agreement.
26. Counterparts. This Agreement may be executed in counterparts, and eachcounterpart will have the same force and effect as an original and will constitute an effective,binding agreement on the part of each of the undersigned.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of theCompany by a duly authorized officer, as of the day and year written below.
TD AMERITRADE HOLDING CORPORATION
/s/ Fredric J. Tomczyk
||Date: June 22, 2006|
Chairman of the Compensation Committee
/s/ Joseph H. Moglia
||Date: June 23, 2006|
[SIGNATURE PAGE TO MOGLIA EMPLOYMENT AGREEMENT]
SEPARATION AND RELEASE OF CLAIMS AGREEMENT
This Separation and Release of Claims Agreement (Agreement) is made by and between Joseph H.Moglia (Employee) and TD Ameritrade Holding Corporation (Company) (collectively referred to asthe Parties):
WHEREAS, Employee and Company entered into an Employment Agreement dated May 19, 2006 (theEmployment Agreement);
WHEREAS, the Company and Employee have entered into Performance Restricted Stock UnitAgreements, dated [DATES], (collectively the Restricted Stock Unit Agreements) pursuant to whichthe Employee was eligible to participate in the Ameritrade Holding Corporation 1996 Long-TermIncentive Plan (the Plan);
WHEREAS, Employee was employed by the Company;
WHEREAS, Employees employment with Company was terminated on or about [DATE] (theTermination Date);
WHEREAS, the Parties, and each of them, wish to resolve any and all disputes, claims,complaints, grievances, charges, actions, petitions and demands that the Employee may have againstthe Company as defined herein, including, but not limited to, any and all claims arising or in anyway related to Employees employment with, or separation from, the Company;
NOW THEREFORE, in consideration of the promises made herein, the Parties hereby agree asfollows:
(a) The Company agrees to pay and reimburse Employee pursuant to Sections 7, 8, 10, and 17 ofthe 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 asexpressly provided in the Employment Agreement or in any plan or program referenced therein orherein, following the Effective Date Employee shall not be entitled to the accrual of any employeebenefits.
(b) Stock. The Parties agree that Employees vesting with respect to those unvestedequity awards outstanding as of the Effective Date shall accelerate pursuant to Section 8 of theEmployment Agreement, as appropriate, subject to Section 9 of the Employment Agreement. All sharesshall continue to be subject to all other terms of the Restricted Stock Unit Agreements except asotherwise provided in the Employment Agreement.
2. Confidential Information. Employee shall continue to maintain the confidentialityof all confidential and proprietary information of the Company and shall continue to comply with
the terms and conditions of Section 10 of the Employees Employment Agreement. Employee shallreturn (or, to the extent permitted in the Employment Agreement, destroy) all of the Companysproperty and confidential and proprietary information in his possession to the Company on or beforethe Effective Date of this Agreement. The receipt of any severance benefits set forth in Section 1above is subject to the Employees continued compliance with Section 10 of the EmployeesEmployment Agreement. In the event that the Employee fails to comply with Section 10 of theEmployees Employment Agreement, other than an inadvertent and immaterial violation made in goodfaith, the Company is entitled to immediately recover any payments made pursuant to Section 1 ofthis Agreement.
3. Payments. Employee acknowledges and represents that the Company will have paid allsalary, wages, bonuses, accrued vacation, commissions and any and all other benefits due toEmployee once the above noted payments and benefits are received.
4. Release of Claims. Employee agrees that the foregoing consideration representssettlement in full of all outstanding obligations owed to Employee by the Company and, with respectto the Company, its officers, managers, supervisors, independent contractors and employees.Employee, on his own behalf, and on behalf of his respective heirs, executors and assigns, herebyfully and forever releases the Company and, with respect to the Company, its officers, directorsand employees, and the Companys affiliates, divisions, subsidiaries, predecessor and successorcorporations, and assigns, from, and agrees not to sue concerning, any claim, duty, obligation orcause of action relating to any matters of any kind, whether presently known or unknown, suspectedor unsuspected, that Employee may possess arising from any omissions, acts or facts that haveoccurred up until and including the Effective Date of this Agreement including, without limitation:
(a) any and all claims relating to or arising from Employees employment relationship with theCompany and the termination of that relationship;
(b) any and all claims relating to, or arising from, Employees right to purchase, or actualpurchase 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 violationof public policy; discrimination; breach of contract, both express and implied; breach of acovenant of good faith and fair dealing, both express and implied; promissory estoppel; negligentor intentional infliction of emotional distress; negligent or intentional misrepresentation;negligent or intentional interference with contract or prospective economic advantage; unfairbusiness 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, theAge 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; theMassachusetts 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 oremployment discrimination;
(g) any claim for any loss, cost, damage, or expense arising out of any dispute over thenon-withholding or other tax treatment of any of the proceeds received by Employee as a result ofthis 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 remainin effect in all respects as a complete general release as to the matters released.Notwithstanding anything in this Agreement to the contrary, this release and agreement not to suedoes not extend to any obligations incurred under this Agreement or to any obligations underSection 7, 8, 10, or 17 of the Employment Agreement or to any indemnification or contributionrights the Employee may have with respect to any third-party claims.
Employee acknowledges and agrees that any uncured material breach of any provision of thisAgreement, after receipt by Employee of written notice specifying such breach and a reasonableopportunity to cure, shall constitute a material breach of this Agreement and shall entitle theCompany to recover any direct damages resulting therefrom, including the right to cease theseverance benefits hereunder to the extent of any such damages.
5. Acknowledgement of Waiver of Claims Under ADEA. Employee acknowledges that he iswaiving and releasing any rights he may have under the Age Discrimination in Employment Act of 1967(ADEA) and that this waiver and release is knowing and voluntary. Employee and the Company agreethat this waiver and release does not apply to any rights or claims that may arise under ADEA afterthe Effective Date of this Agreement. Employee acknowledges that the consideration given for thiswaiver and release Agreement is in addition to anything of value to which Employee was alreadyentitled. Employee further acknowledges that he has been advised by this writing that:
(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 adetermination in good faith of the validity of this waiver under the ADEA, nor does it impose anycondition precedent, penalties or costs for doing so, unless specifically authorized by federallaw.
6. Unknown Claims. The Parties represent that they are not aware of any claim byeither of them against the other, other than the claims that are released by this Agreement.Employee acknowledges that he has been advised by legal counsel and is familiar with the principlethat a general release does not extend to claims which the releasor does not know or suspect toexist in his favor at the time of executing the release, which if known by him must have materiallyaffected his settlement with the releasee. Employee, being aware of said principle, agrees toexpressly waive any rights Employee may have to that effect, as well as under any other statute orcommon law principles of similar effect.
7. No Pending or Future Lawsuits. Employee represents that to his knowledge he has nolawsuits, claims, or actions pending in his name, or on behalf of any other person or entity,against the Company or any other person or entity referred to herein. Employee also representsthat he does not intend to bring any claims on his own behalf or on behalf of any other person orentity against the Company or any other person or entity referred to herein, other than any claimsto enforce his rights hereunder and under the relevant provisions of the Employment Agreement.
8. Application for Employment. Employee understands and agrees that, as a conditionof this Agreement, he shall not be entitled to any employment with the Company, its subsidiaries,or any successor, and he hereby waives any right, or alleged right, of employment or re-employmentwith the Company, its subsidiaries or related companies, or any successor.
9. Confidentiality. The Parties acknowledge that the Companys and the Employeesagreement to keep the terms and conditions of this Agreement confidential was a material factor onwhich all parties relied in entering into this Agreement. The Company and the Employee heretoagree to use his (its) reasonable efforts to maintain in confidence: (i) the existence of thisAgreement, (ii) the contents and terms of this Agreement, (iii) the consideration for thisAgreement, and (iv) any allegations relating to the Employee, the Company or its officers oremployees with respect to Employees employment with the Company, except as otherwise provided forin this Agreement (hereinafter collectively referred to as Settlement Information). Employee andCompany each agrees to take every reasonable precaution to prevent disclosure of any SettlementInformation to third parties, and agrees that there shall be no publicity, directly or indirectly,concerning any Settlement Information. Employee and Company each agrees to take every precautionto disclose Settlement Information only to those attorneys, accountants, governmental entities, andfamily members who have a reasonable need to know of such Settlement Information. The Partiesagree that if Company proves that Employee breached this Confidentiality provision, it shall beentitled to an award of its costs spent enforcing this provision, including all reasonableattorneys fees associated with the enforcement action, without regard to whether the Company canestablish actual damages from the breach by Employee.
10. No Cooperation. Employee agrees he shall not, in breach of any duty or obligationhe owes to the Company, act in any manner that he knows or should know is reasonably likely todamage the business of the Company. For purposes of this Section 10, an inadvertent and immaterialviolation made in good faith shall not constitute a breach of this Section 10. Employee agreesthat he shall not counsel or assist any attorneys or their clients in the presentation orprosecution of any disputes, differences, grievances, claims, charges, or complaints by any thirdparty against the Company and/or, with respect to the Company, any officer, director, employee,agent, representative, shareholder or attorney of the Company, unless under a subpoena, legaldiscovery device or court order to do so. Employee further agrees both to immediately notify theCompany upon receipt of any court order, subpoena, or any legal discovery device that seeks orrequires the disclosure or production of the existence or terms of this Agreement, and to mail,within three (3) business days of its actual receipt by Employee, a copy of such subpoena or legaldiscovery device to the Company.
11. Non-Disparagement. Employee shall refrain from any defamation, libel or slanderof the Company or tortious interference with the contracts and relationships of the Company. TheCompany shall instruct its officers and directors to refrain from any defamation, libel or slanderof the Employee or tortious interference with the contracts and relationships of the Employee. Allinquiries by potential future employers of Employee shall be directed to the Companys HumanResources Department. Upon inquiry, the Company shall only state the following: Employees lastposition and dates of employment. The Companys notification of any potential future employer ofthe Employees duties and responsibilities under this Agreement and pursuant to the terms of theEmployees Employment Agreement shall not be considered defamation, libel, slander, or tortiousinterference.
12. Non-Solicitation. Employee agrees to comply with the provisions of Section 9 ofthe Employees Employment Agreement.
13. No Admission of Liability. The Parties understand and acknowledge that thisAgreement constitutes a compromise and settlement of disputed claims. No action taken by theParties hereto, or either of them, either previously or in connection with this Agreement shall bedeemed or construed to be: (a) an admission of the truth or falsity of any claims heretofore madeor (b) an acknowledgment or admission by either party of any fault or liability whatsoever to theother party or to any third party.
14. No Knowledge of Wrongdoing. Employee and Company each represents that he (it) hasno knowledge of any wrongdoing involving improper or false claims against a federal or stategovernmental agency, or any other wrongdoing that involves Employee or other present or formerCompany employees.
15. Tax Consequences. The Company makes no representations or warranties with respectto the tax consequences of the payment of any sums to Employee under the terms of this Agreement.Employee agrees and understands that he is responsible for payment, if any, of local, state and/orfederal taxes on the sums paid hereunder by the Company and any penalties or assessments thereon.Employee further agrees to indemnify and hold the Company harmless from any claims, demands,deficiencies, penalties, assessments, executions, judgments, or
recoveries by any government agency against the Company for any amounts due on account ofEmployees failure to pay federal or state taxes payable by Employee or damages sustained by theCompany by reason of any such claims with respect to Employees failure to pay such tax payable byhim, including reasonable attorneys fees.
16. Costs. The Parties shall each bear their own costs, expert fees, attorneys feesand other fees incurred in connection with the enforcement of this Agreement. The Company shallpay Employees reasonable legal fees incurred in connection with any changes sought to be made bythe Company to the original form of this Agreement (Exhibit A to the Employment Agreement).
17. Indemnification. Employee and Company each agrees to indemnify and hold harmlessthe other from and against any and all loss, costs, damages or expenses, including, withoutlimitation, attorneys fees or expenses incurred by the other arising out of the breach of thisAgreement by him (it), or from any false representation made herein by him (it), and Employeeagrees to so indemnify and hold harmless the Company from any action or proceeding which may becommenced, prosecuted or threatened by Employee or for Employees benefit, upon Employeesinitiative, or with Employees aid or approval, in breach of the provisions of this Agreement.Employee further agrees that in any such action or proceeding, this Agreement may be pled by theCompany as a defense, or may be asserted by way of counterclaim or cross-claim.
18. Cooperation in Litigation. Employee agrees to reasonably cooperate (subject tohis other commitments at such time) with the Company, at the Companys sole expense, in any mattersthat have or may result in a legal claim against the Company, and of which Employee may haveknowledge as a result of Employees employment with the Company. This requires Employee, withoutlimitation, to (1) make himself available upon reasonable request (subject to his other commitmentsat such time) to provide information and assistance to the Company on such matters withoutadditional compensation, except as provided below and except for Employees out-of-pocket costs(including his reasonable legal fees and expenses), and (2) subject to applicable law and legalrequirements, notify the Company promptly of any requests to Employee for information related toany pending or potential legal claim or litigation involving the Company, reviewing, at theCompanys sole expense (including reimbursement to Employee for his reasonable legal fees andexpenses), any such request with a designated representative of the Company prior to disclosing anysuch information, and not objecting to the representative of the Company being present during anycommunication of such information. If a significant amount of Employees time is so required, theCompany shall also pay Employee reasonable compensation for such time.
19. Arbitration. The Parties agree that any and all disputes arising out of, orrelating to, the terms of this Agreement, their interpretation, and any of the matters hereinreleased, shall be subject to binding arbitration in Omaha, Nebraska before the AmericanArbitration Association under its National Rules for the Resolution of Employment Disputes. TheParties agree that the prevailing party in any arbitration shall be entitled to injunctive reliefin any court of competent jurisdiction to enforce the arbitration award. The Parties agree thatthe prevailing party in any arbitration shall be awarded its reasonable attorneys fees and costs.The Parties hereby agree
to waive their right to have any dispute between them resolved in a court of law by a judge orjury. This section shall not prevent either party from seeking injunctive relief (or any otherprovisional remedy) from any court having jurisdiction over the Parties and the subject matter oftheir dispute relating to Employees and Companys obligations under this Agreement and theagreements incorporated herein by reference.
20. Authority. The Company represents and warrants that the undersigned has theauthority to act on behalf of the Company and to bind the Company and all who may claim through itto the terms and conditions of this Agreement. Employee represents and warrants that he has thecapacity to act on his own behalf and on behalf of all who might claim through him to bind them tothe terms and conditions of this Agreement. Employee warrants and represents that to his knowledgethere are no liens or claims of lien or assignments in law or equity or otherwise of or against anyof the claims or causes of action released herein.
21. No Representations. Each party represents that it has had the opportunity toconsult with an attorney, and has carefully read and understands the scope and effect of theprovisions of this Agreement. Neither party has relied upon any representations or statements madeby the other party hereto which are not specifically set forth in this Agreement or in theEmployment Agreement.
22. Severability. In the event that any provision hereof becomes or is declared by acourt of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continuein full force and effect without said provision so long as the remaining provisions remainintelligible and continue to reflect in all material respects the original intent of the Parties.
23. Entire Agreement. This Agreement (and the continuing obligations under theEmployment Agreement referred to herein) represents the entire agreement and understanding betweenthe Company and Employee concerning the subject matter of this Agreement and Employeesrelationship with the Company, and supersedes and replaces any and all prior agreements andunderstandings between the Parties concerning the subject matter of this Agreement and Employeesrelationship with the Company, with the exception of the Restricted Stock Unit Agreements, and theapplicable Sections of the Employment Agreement.
24. No Waiver. The failure of any party to insist upon the performance of any of theterms and conditions in this Agreement, or the failure to prosecute any breach of any of the termsand conditions of this Agreement, shall not be construed thereafter as a waiver of any such termsor conditions. This entire Agreement shall remain in full force and effect as if no suchforbearance or failure of performance had occurred.
25. No Oral Modification. Any modification or amendment of this Agreement, oradditional obligation assumed by either party in connection with this Agreement, shall be effectiveonly if placed in writing and signed by both Parties or by authorized representatives of eachparty.
26. Governing Law. This Agreement shall be deemed to have been executed and deliveredwithin 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 oflaw principles. To the extent that either party seeks injunctive relief in any court havingjurisdiction for any claim relating to the alleged misuse or misappropriation of trade secrets orconfidential or proprietary information, each party hereby consents to personal and exclusivejurisdiction and venue in the state and federal courts of the state of New York.
27. Attorneys Fees. In the event that either Party brings an action to enforce oreffect its rights under this Agreement, the prevailing party shall be entitled to recover its costsand expenses, including the costs of mediation, arbitration, litigation, court fees, plusreasonable attorneys fees, incurred in connection with such an action.
28. Effective Date. This Agreement is effective after it has been signed by Employeeand after eight (8) days have passed since Employee has signed the Agreement (the Effective Date)and delivered it to Company, unless revoked by Employee within seven (7) days after the date theAgreement was signed by Employee.
29. Counterparts. This Agreement may be executed in counterparts, and eachcounterpart shall have the same force and effect as an original and shall constitute an effective,binding agreement on the part of each of the undersigned.
30. Voluntary Execution of Agreement. This Agreement is executed voluntarily andwithout any duress or undue influence on the part or behalf of the Parties hereto, with the fullintent of releasing all claims. The Parties acknowledge that:
(a) they have read this Agreement;
(b) they have been represented in the preparation, negotiation, and execution of thisAgreement by legal counsel of their own choice or that they have voluntarily declined to seek suchcounsel;
(c) they understand the terms and consequences of this Agreement and of the releases itcontains; and
(d) they are fully aware of the legal and binding effect of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forthbelow.
|TD AMERITRADE HOLDING CORPORATION|
|JOSEPH H. MOGLIA, an individual|
|Joseph H. Moglia|