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EXHIBIT 10.2
SEPARATION AND RELEASE OF CLAIMS AGREEMENT
This Separation and Release of Claims Agreement ("Agreement") is
made by
and between John R. MacDonald ("Employee") and TD AMERITRADE
Holding Corporation
("Company") (together referred to as the "Parties").
RECITALS
WHEREAS, Employee and Company entered into an Employment
Agreement dated
May 23, 2006 (the "Employment Agreement");
WHEREAS, the Company and Employee have entered into stock option
agreements
(collectively, the "Stock Option Agreements") pursuant to which
the Employee was
eligible to receive awards of stock options under the Ameritrade
Holding
Corporation 1996 Long-Term Incentive Plan (the "Plan");
WHEREAS, the Company and Employee have entered into Performance
Restricted
Stock Unit Agreements, dated March 10, 2006 and October 25,
2006, (collectively
the "Restricted Stock Unit Agreements) pursuant to which the
Employee was
eligible to participate in the Plan;
WHEREAS, Employee was employed by the Company;
WHEREAS, Employee's employment with Company will be terminated
on or about
June 1, 2007 (the "Termination 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 against the Company as
defined herein,
including, but not limited to, any and all claims arising or in
any way related
to Employee's employment with, or separation from, the
Company;
NOW THEREFORE, in consideration of the promises made herein, the
Parties
hereby agree as follows:
1. Consideration.
(a) Accrued Payments. The Company agrees to pay Employee,
pursuant to
Section 7 of the Employment Agreement, (i) Employee's accrued
but unpaid salary
and (ii) pay for accrued but unused vacation, which has accrued
through the
Termination Date. The Company also agrees to pay the Employee
for any
unreimbursed business expenses required to be reimbursed to
Employee pursuant to
the Company's normal and customary business expense
reimbursement procedures.
(b) Base Salary. The Company agrees to continue to pay
Employee
following the Termination Date in accordance with normal payroll
practices his
annual base salary, subject to required withholdings, until
September 30, 2007.
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(c) Annual Incentive. The Company agrees that Employee shall
be
entitled receive the annual incentive bonus for fiscal year
2007, calculated
based on a target of $1.6 million and using the actual
performance of the
Company to determine the percentage payout, subject to the terms
and conditions
of the Management Incentive Program. The annual incentive bonus
for fiscal year
2007 shall be paid entirely in cash. Employee shall receive
payment of the
annual incentive bonus at the same time as others participants
in the Management
Incentive Program.
(d) Stock Options and Restricted Stock Units. The Parties agree
that,
as consideration for the execution of this Agreement, the Stock
Option
Agreements covering grants on October 31, 2002 and June 22, 2003
shall be
considered amended, as appropriate, to permit Employee the
ability to exercise
stock options which were outstanding and vested as of the
Termination Date at
any time during the period from the Termination Date and ending
December 31,
2007. In addition, with respect to those unvested equity awards
outstanding as
of the Termination Date under the Restricted Stock Unit
Agreements, Employee
shall continue vesting in such outstanding awards in accordance
with the
applicable vesting schedule based on actual performance of the
Company. Employee
acknowledges that the specific vesting and exercisability of his
awards pursuant
to the Stock Option Agreements and/or Restricted Stock Unit
Agreements, as of
the Termination Date, is reflected on the attached Schedule A,
and that no
additional shares subject to such awards shall become vested
after the
Termination Date. Except as provided herein, all options and
restricted stock
units shall continue to be subject to all other terms and
conditions of the
Stock Option Agreements and/or Restricted Stock Unit
Agreements.
(e) Benefits. The Employee shall continue to be eligible to
participate in the Company's group medical and dental plan until
September 30,
2007, with the Employee responsible for any premiums for such
coverage. Employee
(and any eligible dependents) shall be eligible for continued
health benefits
pursuant to COBRA continuation coverage (as described in Section
4980B of the
Internal Revenue Code of 1986, as amended). The COBRA
continuation coverage, if
elected by the Employee pursuant to the policies and procedures
of the Company,
shall be the sole expense of the Employee. Employee's
participation in all other
benefits and incidents of employment ceased on the Termination
Date. Employee
ceased accruing employee benefits, including, but not limited
to, vacation time
and paid time off, as of the Termination Date.
2. Confidential Information. Employee shall continue to maintain
the
confidentiality of all confidential and proprietary information
of the Company
and shall continue to comply with the terms and conditions of
Section 10 of the
Employee's Employment Agreement. Employee shall return all of
the Company's
property and confidential and proprietary information in his
possession to the
Company on the Effective Date of this Agreement.
3. Payments. Employee acknowledges and represents that the
Company has paid
all salary, wages, bonuses, accrued vacation, commissions and
any and all other
benefits due to Employee after payments and benefits in section
1 above are
received.
4. Release of Claims. Employee agrees that the foregoing
consideration
represents settlement in full of all outstanding obligations
owed to Employee by
the Company and its officers, managers, supervisors, agents and
employees.
Employee, on his own behalf, and on behalf of his respective
heirs, family
members, executors, agents, and assigns, hereby fully and
forever releases the
Company and its officers, directors, employees, agents,
investors, shareholders,
administrators,
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affiliates, divisions, subsidiaries, predecessor and successor
corporations, and
assigns, from, and agree not to sue concerning, any claim, duty,
obligation or
cause of action relating to any matters of any kind, whether
presently known or
unknown, suspected or unsuspected, that Employee may possess
arising from any
omissions, acts or facts that have occurred up until and
including the
Termination Date of this Agreement including, without
limitation:
(a) any and all claims relating to or arising from
Employee's
employment relationship with the Company and the termination of
that
relationship;
(b) any and all claims relating to, or arising from, Employee's
right
to purchase, or actual purchase 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 violation of public policy;
discrimination;
breach of contract, both express and implied; breach of a
covenant of good faith
and fair dealing, both express and implied; promissory estoppel;
negligent or
intentional infliction of emotional distress; negligent or
intentional
misrepresentation; negligent or intentional interference with
contract or
prospective economic advantage; unfair business 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, the Age
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; the Massachusetts 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 or employment discrimination;
(g) any claim for any loss, cost, damage, or expense arising out
of
any dispute over the non-withholding or other tax treatment of
any of the
proceeds received by Employee as a result of this 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 remain in effect in all respects as a complete
general release as
to the matters released. This release does not extend to any
obligations
incurred under this Agreement.
Employee acknowledges and agrees that any breach of any
provision of this
Agreement shall constitute a material breach of this Agreement
and shall entitle
the Company immediately to recover and cease the severance
benefits provided to
Employee under this Agreement.
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5. Acknowledgement of Waiver of Claims Under ADEA. Employee
acknowledges
that he is waiving 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 agree
that this
waiver and release does not apply to any rights or claims that
may arise under
ADEA after the Effective Date of this Agreement. Employee
acknowledges that the
consideration given for this waiver and release Agreement is in
addition to
anything of value to which Employee was already entitled.
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 Agr
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