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EXHIBIT 10.1
TD AMERITRADE HOLDING CORPORATION
JOSEPH H. MOGLIA EMPLOYMENT AGREEMENT
This
Agreement, originally entered into as of May 19, 2006, by and
between
TD Ameritrade Holding Corporation (the "Company") and Joseph H.
Moglia
("Executive") and amended effective as of June 23, 2006, is hereby
amended and
restated in its entirety effective as of June 11, 2008 (the
"Amendment Date").
1. Duties
and Scope of Employment.
(a) Positions and Duties. Since May 19, 2006 (the "Effective
Date"),
Executive has served as Chief Executive Officer, reporting to the
Company's
Board of Directors (the "Board"). As of the Amendment Date,
Executive continues
to serve in such position and shall do so until September 30, 2008
(the
"Transition Date"). Immediately after the Transition Date,
Executive's service
as the Chief Executive Officer shall cease and Executive shall
immediately
thereafter become the employee Chairman of the Board. Executive's
duties as
employee Chairman of the Board shall include those as set forth in
the Company's
Bylaws and as set forth in Exhibit A. The period Executive is
employed by the
Company under this Agreement as either the Chief Executive Officer
or employee
Chairman of the Board is referred to herein as the "Employment
Term."
(b) Board Membership. Executive was appointed to serve as a
member
of the Board prior to the Effective Date. During the Employment
Term, at each
annual meeting of the Company's stockholders at which Executive's
term as a
member of the Board has otherwise expired, the Company will
nominate Executive
to serve as a member of the Board, and after the Transition Date,
such
nomination shall provide that Executive shall hold the office of
employee
Chairman of the Board. Executive's service as a member of the Board
and/or
Chairman of the Board will be subject to any required stockholder
approval. Upon
the termination of Executive's employment 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
Executive's
employment and Executive, at the Board's request, will execute any
reasonable
documents necessary to reflect his resignation.
(c) Obligations. During the Employment Term, Executive will
devote
Executive's full business efforts 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 Audit
Committee of the Board (which approval will not be unreasonably
withheld);
provided, however, that Executive may, without the approval of the
Audit
Committee of the Board, serve in any capacity with any civic,
educational, or
charitable organization, provided such services do not interfere
(other than in
an insubstantial manner) with Executive's obligations to Company.
Executive
expects to serve as a member of the Board of Directors of AXA
Financial, Inc.
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and of its subsidiary, The Equitable Life Assurance Society of the
U.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 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 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
previous employer or his membership on any boards of directors
(other than the
Board or its affiliates, predecessors or subsidiaries).
(d) Other Entities. Until the Transition Date, and thereafter
as
reasonably requested by the Board, 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. The parties agree that the indemnification, contribution
and insurance
rights of Executive referenced in Section 12 will also apply to
Executive's
activities under this Section 1(d).
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
and other
payments and benefits depending upon the circumstances of
Executive's
termination of employment.
3. Term of
Agreement. This Agreement will continue from the Amendment Date
through, including and ending on May 31, 2011 (the "Term of the
Agreement"). The
Term of the Agreement will be divided into two periods, with an
initial period
beginning on the Amendment Date and ending on the Transition Date
and an
additional period beginning immediately after the Transition Date
and ending on
May 31, 2011 (the "Additional Term"). The period of time beginning
on the
Amendment Date and ending on May 31, 2009, which is intended to
reflect the
remaining period of the "Initial Term" as that term was defined in
the
predecessor Agreement dated as of June 23, 2006, shall be referred
to herein as
the "Remaining Original Term."
4.
Compensation.
(a) Base Salary. As of the Amendment Date, the Company will
continue
to pay Executive an annual salary of $1,000,000 as compensation for
his services
(such annual salary, as is then effective, to be referred to herein
as "Base
Salary") during the Employment Term. 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 the Company's 2008 and
2009
fiscal years, Executive will be eligible to participate in the
Ameritrade
Holding Corporation Management
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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 in good faith by the HR
&
Compensation Committee of the Board within the first ninety (90)
days of each
applicable fiscal year and communicated in writing to Executive
within such
ninety (90) day period. For the Company's 2008 fiscal year the
Annual Incentive
will have a target value of $3,000,000. For the Company's 2009
fiscal year the
Annual Incentive will have a target value of $2,000,000 (which
reflects the
pro-rata period beginning on October 1, 2008 and ending on May 31,
2009 (the
"Pro-Rata Period")). Executive shall not be eligible to participate
in the MIP
for any period beginning on and after June 1, 2009.
(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 580,550 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. On October 25, 2006, Executive was granted
an award under the LTIP of 280,486 performance restricted stock
units, and on
October 25, 2007, Executive was granted an additional award under
the LTIP of
288,210 restricted stock units (collectively the "Prior Awards").
The Prior
Awards 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 Award Agreement. As consideration for the execution of
this amended
and restated Agreement the Executive shall, with respect to the
Company's 2008
and 2009 fiscal years, be eligible for additional awards under the
LTIP of
restricted share units with a target value, determined by the
Company pursuant
to a reasonable and uniform methodology on the date of grant, 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. For
the Company's 2008 fiscal year the Annual Award will have a target
value of
$6,000,000 on the date of grant (the "2008 Award"). For the
Company's 2009
fiscal year the Annual Award will have a target value of $4,000,000
on the date
of grant (which reflects the Pro-Rata Period) (the "2009 Award").
The 2008 Award
and the 2009 Award shall be scheduled to vest and be settled in
accordance with
the applicable performance criteria and vesting schedule to be
provided in the
applicable Award Agreement. The Prior Awards, the 2008 Award and
the 2009 Award
shall be referred to herein collectively as the "Annual Awards" and
individually
as an "Annual Award." Executive shall not receive any grant of any
additional
Annual Awards for any period beginning on and after June 1,
2009.
(iii) Should any conflict or inconsistency exist between the
terms of this Agreement and the terms of the Special Grant or an
Annual Award
that would provide Executive with a greater or otherwise better
benefit, then
the terms of this Agreement will prevail.
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5.
Employee Benefits.
(a) Generally. 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 executive officers of the
Company, as
such plans, policies and arrangements may exist from time to
time.
(b) Airplane Travel. When traveling on Company-related
business,
Executive will be entitled 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 of Executive's duties hereunder, in accordance with the
Company's
expense reimbursement policy with respect to all executive officers
of the
Company 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, Annual Incentive for any completed applicable fiscal year
as of his
termination of employment, (c) not yet granted, but otherwise
earned, Annual
Award for any completed applicable fiscal year as of his
termination of
employment, such amount to be based on actual performance achieved
for such
fiscal year and shall be paid entirely in cash at the time the
Company makes
such other annual awards to its other executives; (d) pay for
accrued but unused
vacation, (e) benefits or compensation as provided under the terms
of any
employee benefit and compensation agreements or plans applicable to
Executive,
(f) unreimbursed business expenses required to be reimbursed to
Executive, (g)
rights to indemnification and contribution Executive may have under
the
Company's Articles of Incorporation, Bylaws, the Agreement, or
separate
indemnification agreement, as applicable, and (h) payments and
reimbursements
under Sections 10 and 17 hereof. The payments and benefits set
forth in this
Section 7 will be in addition to the applicable payments and
benefits set forth
in Section 8.
8.
Severance.
(a) Termination Without Cause or Resignation for Good Reason
During
the Remaining Original Term. If during the Remaining Original 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 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 Company's
normal payroll
policies; (ii) continued payment of Executive's Annual Incentive at
the actual
performance level achieved during the fiscal year of Executive's
termination for
a period of time equal to the Severance Period in accordance with
the Company's
normal payroll policies with the form of such payout identical to
that
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received by the other participants in the MIP for such year; (iii)
the current
fiscal year's Annual Incentive pro-rated to the date of
termination, with such
pro-rated amount to be payable within thirty (30) days after
termination and
calculated by multiplying the current fiscal year's incentive
compensation
determined by actual performance as of the date of termination 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 with the
form of such payout identical to that received by the other
participants in the
MIP for such year; (iv) the payment in cash of the value of any
Annual Awards
scheduled to be granted to Executive (but not yet so granted)
during the
Remaining Original Term, payable within thirty (30) days after such
termination;
and (v) restricted share units granted under the LTIP as part of
any Annual
Awards or the Special Grant that (1) 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 (A) by actual performance for any
completed
performance period through the date of Executive's termination and
(B) 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 (2) are subject to time based vesting shall be
considered
fully vested and will be settled promptly thereafter as provided by
the
applicable Award Agreement.
(b) Voluntary Termination After the Transition Date or
Termination
Upon Completion of the Term of the Agreement. If after the
Transition Date
Executive voluntarily terminates his employment for any reason
(including
specifically any Good Reason, but excluding any termination in
which Executive
does not provide the Company with sixty (60) days advance written
notice of his
termination), or upon a termination upon completion of the Term of
the
Agreement, then, subject to Sections 9 and 10, and in addition to
the payments
in Section 7 and any other applicable payments in this Section 8,
then
restricted share units granted under the LTIP as part of any Annual
Awards or
the Special Grant that (1) 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 (A) by actual performance for any completed
performance period
through the date of Executive's termination and (B) 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 (2) are subject to time based vesting shall be
considered
fully vested and will be settled promptly thereafter as provided by
the
applicable Award Agreement.
(c) Termination Without Cause or Resignation for Good Reason
After
the Remaining Original Term and During the Additional Term. If
after the
Remaining Original Term and during the Additional 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 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 Company's normal payroll
policies; and
(ii) restricted share units granted under the LTIP as part of any
Annual Awards
or the Special Grant that (1) 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 (A) by actual performance for any completed
performance period
through the date of Executive's termination and (B) 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 (2) 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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(d) Voluntary Termination After Transition Date, Termination
Without
Cause or Resignation for Good Reason During the Term of the
Agreement or
Termination Upon Completion of the Term of the Agreement. If after
the
Transition Date Executive voluntarily terminates his employment, or
if Executive
is terminated without Cause or voluntarily terminates his
employment for any
reason (including specifically any Good Reason, but excluding any
termination in
which Executive does not provide the Company with sixty (60) days
advance
written notice of his termination) during the Term of the
Agreement, or upon a
termination upon completion of the Term of the Agreement, then, in
addition to
any other applicable payments or benefits described in Sections 7
or 8 of this
Agreement, Executive will receive at the sole expense of the
Company: (i) an
office at Company headquarters or at a location of Executive's
choosing with the
cost and size of such office to be reasonably determined by the
Audit Committee
of the Board, for a period of five (5) years following the date of
Executive's
termination; (ii) an experienced full-time executive assistant and
an
experienced associate of the Executive's choosing, both of whom
shall be
employed by the Company and covered by the Company's benefits plans
as in effect
from time to time, for a period of five (5) years following the
date of
Executive's termination with such expense to the Company to be
reasonably
determined by the Audit Committee of the Board and Executive;
(iii)
post-retirement medical coverage for Executive, his spouse and
Executive's
eligible dependents under the Company's benefit plans for the life
of Executive,
or for the life of Executive's spouse if she survives Executive,
with such
coverage to be secondary to Executive's Medicare 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
(except that Executive's spouse will also receive coverage for the
remainder of
her life), as such plans, policies and arrangements may exist from
time to time;
(iv) use of a private aircr
