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EXHIBIT 10.9
TD AMERITRADE HOLDING CORPORATION
ELLEN L.S. KOPLOW EMPLOYMENT AGREEMENT
This
Agreement, originally entered into as of September 26, 2006, by
and
between TD Ameritrade Holding Corporation (the "Company") and Ellen
L.S. Koplow
("Executive"), is hereby amended and restated in its entirety
effective as of
October 13, 2008 (the "Amendment Date").
1. Duties
and Scope of Employment.
(a) Positions and Duties. As of September 26, 2006 (the
"Effective
Date"), Executive serves, and will continue to serve, as Executive
Vice
President, General Counsel and Secretary, reporting to the
Company's Chief
Executive Officer (the "CEO"). Executive will render such business
and
professional services in the performance of her duties, consistent
with
Executive's position within the Company, as will reasonably be
assigned to her
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.
(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 her
employment with her current employer (or any other previous
employer) or her
membership on any boards of directors.
(c) Other Entities. Executive agrees to serve, if requested and
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.
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2. At-Will
Employment. Executive and the Company agree that Executive's
employment with the Company constitutes "at-will" employment.
Executive and 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.
3. Term of
Agreement. This Agreement will have an initial term of three
(3) years commencing on the Effective Date (the "Initial Term"). On
the third
anniversary of the Effective Date, this Agreement automatically
will renew for
an additional one (1) year term (the "Additional Term") unless
either party
provides the other party with written notice of non-renewal at
least sixty (60)
days prior to the date of automatic renewal. Following the
Additional Term, the
Agreement will renew for an additional one (1) year term upon the
mutual consent
of Executive and the Company.
4.
Compensation.
(a) Base Salary. Subject to periodic review by the Board, the
Company will pay Executive an annual salary of $300,000 as
compensation for her
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, effective as of each fiscal year beginning on or after
October 1, 2008,
have a target value of $360,000 (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").
(i) Special Grant. On March 10, 2006, Executive was granted a
special award under the LTIP of 34,832 performance restricted share
units (the
"Special Grant"). The Special Grant will be scheduled to vest and
be settled in
accordance with the performance criteria and vesting schedule set
forth on
Exhibit B of the applicable Special Grant Award Agreement.
(ii) Annual Award. With respect to each full fiscal year
beginning on and after October 1, 2008 during the Employment Term,
Executive
will be eligible for an award under the LTIP of performance
restricted share
units with a target value, determined by the Company pursuant to a
reasonable
and uniform methodology, equal to $240,000 on the date of grant
(the "Annual
Award"), and will be scheduled to vest and be settled in accordance
with the
applicable performance criteria and vesting schedule provided in
the applicable
Award Agreement.
5.
Employee Benefits. Executive will be eligible to participate in
accordance with the terms of all Company employee benefit plans,
policies and
arrangements that are applicable to other
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executive officers of the Company, as such plans, policies and
arrangements may
exist from time to time.
6.
Expenses. The Company will reimburse Executive for reasonable
travel,
entertainment and other expenses incurred by Executive in the
furtherance of the
performance of Executive's duties hereunder, in accordance with the
Company's
expense reimbursement policy as in effect from time to time.
7.
Termination of Employment. In the event Executive's employment with
the
Company terminates for any reason, Executive will be entitled to
any (a) unpaid
Base Salary accrued up to the effective date of termination, (b)
unpaid, but
earned and accrued Annual Incentive for any completed fiscal year
as of her
termination of employment, (c) pay for accrued but unused vacation
that the
Company is legally obligated to pay Executive, (d) benefits or
compensation as
provided under the terms of any employee benefit and compensation
agreements or
plans applicable to Executive, (e) unreimbursed business expenses
required to be
reimbursed to Executive, and (f) rights to indemnification
Executive may have
under the Company's Articles of Incorporation, Bylaws, the
Agreement, or
separate indemnification agreement, as applicable. In addition, if
the
termination is by the Company without Cause or if Executive resigns
for Good
Reason, Executive will be entitled to the amounts and benefits
specified in
Section 8.
8.
Severance.
(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 and the requirement to delay certain payments in Section
25, Executive
will receive: (i) a severance amount equal to $1,320,000 which
shall be paid in
equal amounts over the course of the two (2) year period beginning
after
Executive's employment is terminated in accordance with the
Company's normal
payroll policies; (ii) an additional severance payment determined
by taking 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
Annual
Incentive 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, (iii) for a period of
two (2) years,
if the Executive or any of her dependents is eligible for and
elects COBRA
continuation coverage (as described in Section 4980B of the
Internal Revenue
Code of 1986, as amended (the "Code")) under any Company group
medical or dental
plan, 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 (iv) restricted share units granted under the
LTIP as part of
any Annual Awards or the Special Grant that (A) are subject to
performance
vesting will be fully earned and the actual number of restricted
share units
which will be considered vested (in addition to those which vested
in accordance
with their terms) will be determined (1) by actual performance for
any completed
performance period through the date of Executive's termination and
(2) by actual
performance, as specified in the applicable Award Agreement, for
any incomplete
or remaining performance periods after Executive's termination (the
vested
restricted share units will be settled in shares of Company common
stock on the
original settlement date as forth in the Award Agreement (without
regard to such
termination)), and (B) are subject to time based vesting shall be
considered
fully vested and will be settled promptly thereafter as provided by
the
applicable Award Agreement.
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(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 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.
9.
Conditions to Receipt of Severance; Non-solicitation and
Non-competition; No Duty to Mitigate.
(a) Conditions to Receipt of Severance. 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. The receipt of any severance pursuant to Section 8 will
also be
subject to, during the Employment Term and the Restricted Period,
Executive
complying with the non-solicitation and non-competition
requirements of Section
9(b).
(b) Non-solicitation and Non-competition. During the Employment
Term
and the Restricted Period (and with respect to the Restricted
Period, only as
permitted by applicable law and the Maryland Rules of Professional
Conduct, or
such other applicable rules of ethical conduct in effect in any
other State
under which the Executive might be, or might become, authorized to
practice
law), the 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 (i) own
securities of a Competitive Business so long as the securities of
such
corporation or other entity are listed on a
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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; and
(ii) during the
Restricted Period, practice law as an attorney in private practice
(e.g., as an
attorney affiliated with a law firm or as a solo practitioner) so
long as
Executive agrees, to the extent permitted by applicable law and the
Maryland
Rules of Professional Conduct, or such other applicable rules of
ethical conduct
in effect in any other State under which the Executive might be, or
might
become, authorized to practice law), to not provide legal advice or
any
assistance of any nature to any Competitive Business;
(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 custo
