Exhibit 10.2
SEPARATION AND RELEASE
AGREEMENT
THIS SEPARATION AND RELEASE AGREEMENT
(“Agreement”) is made this 4th day of March, 2005,
effective as of the close of business March 31, 2005
(“Effective Date”), by and between Ameritrade Holding
Corporation, and its successors and assigns (collectively, the
“Company”) and Michael R. Feigeles, his heirs,
representatives, affiliates, successors and assigns (collectively
the “Executive”).
WITNESSETH:
WHEREAS , Executive and the Company are parties to an
Employment Agreement dated February 28, 2003, as amended by a
certain letter agreement dated February 28, 2005
(collectively, the “Employment Agreement”) pursuant to
which Executive is employed by the Company; and
WHEREAS, the Term of Executive’s employment under the
Employment Agreement ends on March 31, 2005 “Termination
Date”; and
WHEREAS , as a condition precedent to Executive receiving
certain of the severance benefits, and subject to Executive’s
continued employment through the Termination Date, the parties have
agreed to execute this Agreement.
NOW, THEREFORE , in consideration of the covenants
undertaken in this Agreement, including the release contained
herein, the parties agree as follows:
|
1.
|
Severance Payments
In full and complete
satisfaction of Executive’s claims under the Employment
Agreement, including, but not limited to, salary, vacation, bonus,
stock options, severance, change in control payments, incentive
pay, sick pay, benefits, holiday, out placement services and other
compensation of any kind, and as consideration for the promises
contained in this Agreement, including but not limited to the
release set forth in paragraph 6 herein, and subject to
Executive’s compliance with the terms of this Agreement and
the Employment Agreement, the Company agrees to provide Executive
with the following payments:
|
a.
The Company shall pay Executive a sum equal to 10,000.00 Dollars,
payable on, or as soon as practicable after, March 31, 2005;
and
b. If
the total amount of Non-Competition Payments paid to the Executive
as described in Section 4 below, do not exceed the following
MIP computation (“Computed Amount”), then Executive
shall be paid the difference up to, but not exceeding the Computed
Amount. Computed Amount shall be determined as follows: 50% of the
MIP award the Executive would have received for FY 05 had he been
employed with the Company on October 31, 2005, reduced by
$155,833.34. Such payment, if due, will be made to Executive on or
as soon as
AMERITRADE
CONFIDENTIAL
- 1 -
practicable after the date the payments are made
to participants in the MIP for FY05.
Except as provided herein and in Section 4
below, Executive will be entitled to no other or further
compensation, remuneration, payments or benefits of any kind,
including but not limited to MIP, paid time off hours, Company
contributions to its 401(k) profit sharing plan, insurances and
other salary continuation benefits. However, nothing in this
Agreement is intended to divest Executive of any vested rights, if
any, in the Company’s 401(k) Profit Sharing plan.
|
2.
|
Assignment of Claims
. In consideration of
the payments and benefits to Executive in Section 1 herein,
and Executive’s execution of this Agreement, and as an
express condition of this Agreement, Executive hereby represents
and warrants that, up through the date on which this Agreement is
executed by the parties, he has not assigned or transferred, and he
will not after such date assign or transfer, (a) any claims
against the Company, (b) any rights that he may have had to
assert compulsory or permissive counterclaims against the Company,
or (c) any rights that he has or may have to aforesaid
payments and benefits.
|
|
|
|
3.
|
Return of Property
. Executive hereby
agrees that, within ten (10) calendar days after the Effective
Date, he shall turn over to the Company all company equipment and
property, including but not limited, to computers, printers, and
related equipment, cell phones, pagers, Company Credit cards, and
keys, as well as originals and copies of notes, correspondence,
memoranda, records, documents, computer disks and files, and all
other information or products, no matter how produced or
reproduced, pertaining to the business of the Company, its
subsidiaries, affiliates, officers, and shareholders
(“Company Materials”), it being hereby acknowledged
that all of said items are the sole and exclusive property of the
Company. Executive’s signature on this Agreement shall serve
as a representation and warranty that Executive has not retained
any originals or copies of Company Materials.
|
|
|
|
|
|
|
4.
|
Non-Compete and
Confidentiality. As an inducement for the Company to
enter into this Agreement and in furtherance of the terms of the
Employment Agreement, Executive expressly agrees that he provides
unique and specialized services, skills and expertise to the
Company, and that the Company hired him because of the unique and
specialized services, skills and expertise he is able to provide.
Executive further expressly agrees that he has been given access to
Confidential Information and trade secrets of the Company, its
affiliates, and subsidiaries (collectively
“Ameritrade”). Accordingly, Executive acknowledges and
reaffirms his obligations under the terms of Section 5 of the
Employment Agreement. In addition, the Company elects to require
the Executive to comply with the terms of the Non-competition,
Non-Solicitation and Non-hire provisions set forth in
Section 4 of the Employment Agreement commencing on the
Effective Date and for a six (6) month period thereafter
(“Restricted Period”) and will pay to the Executive the
Non-Competition Payments for the Restricted Period as described
therein.
|
|
|
|
AMERITRADE
CONFIDENTIAL
- 2 -
|
5.
|
Remedies for Breach.
The parties agree that
it will be very difficult to determine damages caused to the
Company should there be a breach by Executive of the provisions of
this Agreement, including, but not limited to, Section 4.
Therefore, in furtherance of the provisions of Section 9 of
the Employment Agreement and any other rights or remedies afforded
to the Company and not as a penalty, the parties agree that if a
breach of any of the provisions of this Agreement or the Employment
Agreement occurs (Forfeiture Event), the Company has the right to
require that the Executive will immediately forfeit all payments
and benefits paid or due to be paid to the Executive that result
from the cessation of employment, including, but not limited to,
the Non-Competition Payments (“Forfeited
Amount”).
|
Payment to the Company of any Forfeited Amount
will be made by any or all of the following methods, at the sole
discretion of the CEO of the Company to recoup the Forfeited
Amount:
|
|
i.
|
The
Company may subtract any Forfeited Amount from any payment payable
to the Executive by the Company or any related entity after the
Forfeiture Event, and/or
|
|
|
ii.
|
The
Executive will pay to the Company any Forfeited Amount which is not
repaid to the Company pursuant to paragraph i. above within
30 days of the Forfeiture Event.
|
For
purposes of clarity, the parties also agree that rights afforded to
Executive under the terms of Section 9 of the Employment
Agreement remain in full force and effect.
|
6.
|
Release. Except for claims based upon a
breach of this Agreement or the Option Agreement (see
Section 16 below
|
|
