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EXHIBIT 10.4
AMERITRADE HOLDING CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
This
Executive Employment Agreement (the "Agreement") between
AMERITRADE
HOLDING CORPORATION, a Delaware corporation
(the "Company") and Lawrence Szczech
(the "Executive"), is made effective May
10, 2005 (the "Effective Date").
Witnesseth
WHEREAS, The Company has employed the
Executive as Managing Director, Client and
Product Strategy and now desires to promote
the Executive to the position of
Executive Vice President, Chief Client
Officer.
WHEREAS, The Executive desires to accept
the promotion offered by the Company
and continue being employed by the
Company.
WHEREAS, The Company and the Executive
desire to set forth in this Agreement,
the terms, conditions and obligations of
the parties with respect to such
promotion and continued employment and this
Agreement is intended by the parties
to supersede all previous agreements
(Excluding for this purpose, any option
agreements dated prior to the Effective
Date ("Prior Option Agreements"), which
option agreements will remain in full force
and effect and be subject to the
terms of the 1996 Long Term Incentive
Plan,) and understandings, whether written
or oral, concerning employment with the
Company and with any subsidiary of the
Company.
NOW THEREFORE, In consideration of the
Company entering into this Agreement and
the benefits Executive will derive from the
Agreement, Executive has agreed to
be bound by the restrictive covenants
contained in the terms below and the
Company and the Executive agree as
follows:
1.
EMPLOYMENT. The Company will employ the Executive as Executive
Vice
President, Chief Client Officer of the
Company or a comparable position as
described in Section 6(e)(ii) below, upon
the terms and conditions set forth in
this Agreement. The Executive will perform
such duties and responsibilities for
the Company, which are commensurate with
his position subject to the reasonable
direction of the Chief Executive Officer
(the "CEO"), Chief Operating Officer
(the "COO") or the Chairman of the Board of
Directors (the "Chairman").
2. TERM.
Subject to the provisions set forth in Section 6 below, the
term
of this Agreement (the "Term") will be the
period beginning on the Effective
Date and ending on May , 2007 unless
earlier terminated in accordance with
Section 6 below. Within 90 days prior to
the expiration of the Term, the
Executive and COO or CEO shall negotiate
terms under which this agreement will
renew for another 12 months.
Notwithstanding the foregoing, upon a "Change of
Control" (as defined in Section 7 below),
the Term of this Agreement will not
change, unless earlier terminated in
accordance with Section 6 below.
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3.
COMPENSATION. During the Term, the Executive will be compensated
for
his services to the Company in accordance
with the following:
(a) Base Salary. The Company will pay to the Executive an
annual
base
salary of $250,000, payable in accordance with the Company's
policies.
The Executive's annual base salary may be reviewed by the
Company
for possible increase (but not decrease) during the Term of
this
Agreement
at the Company's discretion.
(b) Annual Incentive. The Executive will be eligible to
participate
in the
Company's Management Incentive Plan (or any successor
short-term
incentive
plan or program) (the "MIP Plan") for the Company's fiscal year
2005 and
subsequent fiscal years during the Term in accordance with the
terms and
conditions of the MIP Plan with a target bonus of 65% of the
Executive's annual base salary for each fiscal year (the "Target
Bonus").
The
Executive's Target Bonus for periods subsequent to the first year
of
the Term
will be determined by the Compensation Committee of the Board
of
Directors
of the Company (the "Compensation Committee") in its discretion
and based
upon performance criteria determined for each fiscal year by
the
Compensation Committee in its sole discretion but shall in no event
be
less than
65% of the Executive's annual base salary for such subsequent
period.
(c) Long-Term Incentive Plan. The Executive will be eligible to
participate in the Company's 1996 Long-Term Incentive Plan (or
any
successor
long-term incentive plan or program) (the "LTIP"). Any awards
made under
the LTIP will be made at the sole discretion of the
administrator of the LTIP, or the administrator's designee, and
will be
subject to
the terms and conditions of the LTIP and the applicable award
agreement.
The Executive will be eligible for periodic option awards, at
the
discretion and as determined by the Compensation Committee from
time
to time,
at the same time and contingent upon options being granted to
other
Company executives by the Compensation Committee. Number of
options
will be
determined using the same valuation methodology as other
Company
executives' grants.
(d) Deferred Compensation Program. The Executive will be eligible
to
participate in the Company's Executive Deferred Compensation
Program (or
any
successor deferred compensation program) (the "Deferred
Compensation
Program")
in accordance with the terms and conditions of the Deferred
Compensation Program.
(e) Benefits and Perquisites. The Executive will also receive
such
benefits
and perquisites (the "Benefits") which are made available
generally
to other senior executives of the Company. All such Benefits
will be
provided in such amounts as may be determined from time to time
by
the
Company in its discretion and pursuant to the terms of the plan
documents
governing such Benefits.
4.
NON-COMPETITION, NON-SOLICITATION AND NON-HIRE PROVISIONS. The
Executive agrees that:
(a) During the term of this Agreement and for a period of 12
months
after the
natural expiration of the Term (without renewal) or the Date of
Termination whichever
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occurs
first (collectively, the "Restricted Period"), the Executive
will
not
(without the written consent of the Chief Executive Officer and
the
Chairman
of the Board) engage or participate in any business within the
United
States (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
or
formally proposed to be conducted by the Company or any of its
Affiliates
(as defined below) during the 12-month period prior to the Date
of
Termination or expiration of the Term. For purposes of this
Agreement,
the term
"primary businesses" is defined as an online brokerage
business,
including
active trader and long term investor client segments. Provided
that this
restriction shall 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 (a) the
on-line
brokerage business is de minimis as compared to its core
business
in terms
of revenue and/or resources, and (b) Executive's involvement
with
the
company excludes, directly or indirectly, the on-line brokerage
business
during the Restriction Period. Notwithstanding the foregoing,
the
Executive
may own securities of a Competitive Business so long as the
securities
of such corporation or other entity are listed on a national
securities
exchange or on the NASDAQ National Market and the securities
owned
directly or indirectly by the Executive do not represent more
than
one
percent of the outstanding securities of such corporation or
other
entity;
(b) During
the Restricted Period neither the Executive, nor any business
in which
the Executive may engage or participate in, will directly or
indirectly
(i) knowingly induce any customer or vendor of the Company or
of
corporations or businesses which directly or indirectly are
controlled
by the
Company (collectively, the "Affiliates") to patronize any
Competitive Business, (ii) knowingly canvass or solicit any
business from
any
customer of the Company or any of its Affiliates which business is
of
a type
that is similar to the business received by the Company or
Affiliate
from the customer, (iii) request or advise any customer or
vendor of
the Company or any of its Affiliates to withdraw, curtail or
cancel
such customer's or vendor's business with the Company or any of
its
Affiliates, or (iv) compete with the Company or any of its
Affiliates in
merging
with or acquiring any other company or business (whether by a
purchase
of stock or other equity interests, or a purchase of assets or
otherwise)
which is a Competitive Business;
(c) During
the Restricted Period, neither the Executive nor any business
in which
the Executive may engage or participate in will (i) knowingly
hire,
solicit or attempt to hire any employee or contractor of the
Company
or any of
its Affiliates or (ii) encourage any employee or contractor of
the
Company or any of its Affiliates to terminate employment or
contractual arrangements. For purposes of this Agreement,
"employee"
includes
current employees as well as anyone employed by the Company or
any of its
Affiliates within the prior six months from the Executive's
Date of
Termination or expiration of the Term; provided, however, that
this
provision shall not preclude any business in which the Executive
may
engage or
participate in from hiring any such employee who responds to a
public
announcement placed by the business as long as Executive does
not
exercise
any control over the business; and
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(d) In the
event that any of the provisions of this Section should ever be
deemed to
exceed the time, geographic or occupational limitations
permitted
by applicable laws, then such provisions will and are hereby
reformed
to the maximum time, geographic or occupational limitations
permitted
by applicable law.
5.
CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY.
(a) Except as may be required by law, or except to the extent
required
to perform the Executive's duties and responsibilities
hereunder,
the
Executive will keep secret and confidential indefinitely all
non-public
confidential information (including, without limitation,
information regarding cost of new accounts, activity rates of
different
market
niche customers, advertising results, technology (hardware and
software),
architecture, discoveries, processes, algorithms, maskworks,
strategies, intellectual properties, customer lists and other
customer
information) concerning any of the Company and its Affiliates which
was
acquired
by or disclosed to the Executive during the course of the
Executive's employment with the Company ("Confidential
Information") and
not use in
any manner or disclose the same, either directly or indirectly,
to any
other person, firm or business entity.
(b) At the end of the Term (whether by expiration or termination)
or
at the
Company's earlier request, the Executive will promptly return
to
the
Company any and all records, documents, physical property,
information, computer disks, drives or other materials relative to
the
business
of any of the Company and its Affiliates obtained by the
Executive
during course of employment with the Company and not keep any
copies
thereof.
(c) The Executive acknowledges and agrees that all right, title
and
interest
in inventions, discoveries, improvements, trade secrets,
developments, processes and procedures made by the Executive, in
whole or
in part,
or conceived by the Executive either alone or with others, when
employed
by the Company, including such of the foregoing items conceived
during the
course of employment which are developed or perfected after the
Executive's termination of employment, are owned by the Company
("Company
IP"). The
Executive assigns any and all right, title and interest he may
have to
Company IP to the Company and will promptly assist the Company
or
its
designee, at the Company's expense, to obtain patents,
trademarks,
copyrights
and service marks concerning Company IP made by the Executive
and the
Executive will promptly execute all reasonable documents
prepared
by the
Company or its designee and take all other reasonable actions
which
are
necessary or appropriate to secure to the Company and its
Affiliates
the
benefits of Company IP. Such patents, trademarks, copyrights
and
service
marks will at all times be the property of the Company and its
Affiliates. The Executive promptly will keep the Company informed
of, and
promptly
will execute such assignments prepared by the Company or its
designee
as may be necessary to transfer to the Company or its
Affiliates
the
benefits of, any Company IP.
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(d) To the extent that any court or agency seeks to require the
Executive
to disclose Confidential Information, the Executive promptly
will
inform the Company and take reasonable steps to endeavor to
prevent
the
disclosure of Confidential Information until the Company has
been
informed
of such requested disclosure, and the Company has an
opportunity
to respond
to such court or agency. To the extent the Executive obtains
information on behalf of the Company or any of its Affiliates that
may be
subject to
attorney-client privilege as
