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EXHIBIT 10.14
SEPARATION AND RELEASE OF CLAIMS AGREEMENT
This
Separation and Release of Claims Agreement ("Agreement") is made
by
and between Bryce Engel ("Employee") and TD AMERITRADE Holding
Corporation
("Company") (together referred to as the "Parties").
RECITALS
WHEREAS,
Employee and Company entered into an Employment Term Sheet,
effective as of November 1, 2007, which outlines the payments
promised to
Employee for services to the Company (the "Employment
Agreement");
WHEREAS,
the Company and Employee have entered into Performance
Restricted
Stock Unit Agreements, dated March 10, 2006, October 25, 2006 and
October 25,
2007, (collectively the "Restricted Stock Unit Agreements) pursuant
to which the
Employee was eligible to participate in the Ameritrade Holding
Corporation 1996
Long-Term Incentive Plan (the "Plan");
WHEREAS,
Employee was employed by the Company;
WHEREAS,
Employee's employment with Company will be terminated on or
about
November 1, 2008 (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: (i)
Employee's accrued but unpaid salary, (ii) accrued but unpaid
Annual Incentive
for the Company's 2008 fiscal year (which amount shall be paid
based on actual
performance and the Employee's purported portion of the Annual
Incentive which
would have otherwise been paid in Company stock awards shall be
paid entirely in
cash), and (iii) 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) Severance. The Company agrees to pay Employee, after the
delay
required pursuant to Section 1(e) of this Agreement, the following
amounts as
severance pursuant to the Employment Agreement:
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(i) Base Salary. The Company agrees to continue to pay
Employee, following the delay required by Section 1(e) of this
Agreement, a lump
sum cash payment equal to eighteen months (18) of his current Base
Salary, which
is equal to $450,000, subject to required withholdings.
(ii) Annual Incentive. The Company agrees to pay Employee,
following the delay required by Section 1(e) of this Agreement, an
additional
lump sum severance cash payment of $525,000, which is equal to 1.5
times
Employee's fiscal year 2008 target cash bonus component.
(iii) Pro-rata 2009 Annual Incentive. The Company agrees to
pay Employee, following the delay required by Section 1(e) of this
Agreement, an
additional lump sum severance cash payment of $29,167, which is
equal to the
pro-rata portion of the 2009 Annual Incentive determined as of the
Termination
Date.
(c) Restricted Stock Units. The Parties agree that, the vesting
and
settlement of Restricted Stock Units shall be governed by the terms
of Exhibit A
to this Agreement. Except as provided herein and in Exhibit A, all
restricted
stock units shall continue to be subject to all other terms and
conditions of
the Restricted Stock Unit Agreements.
(d) Benefits. 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 Company's portion of any COBRA continuation coverage,
if elected
by the Employee pursuant to the policies and procedures of the
Company, shall be
paid by the Company for the first twelve (12) months (or such
shorter period
pursuant to which the Employee remains eligible for such COBRA
coverage) of
applicable COBRA continuation coverage. Employee shall be
responsible for paying
the Employee's share of such COBRA coverage during the entire
period of
continuation coverage. 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.
(e) Section 409A Delayed Payments. The Company has determined
that
payment of the severance benefits provided in this Agreement would
result in the
imposition of additional tax on the Employee, and consequently, no
severance
benefits owed to the Employee pursuant to this Agreement on or
within the six
(6) month period following the Termination Date will be paid at
such time.
Instead, all such suspended severance benefits shall accrue during
such six (6)
month period and will become payable in a lump sum payment on the
date six (6)
months and one (1) day following the Termination Date. All
subsequent severance
payments, as applicable, will then be payable as provided in this
Agreement.
2.
Confidential Information. Employee shall continue to maintain
the
confidentiality of all confidential and proprietary information of
the Company.
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.
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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, 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
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(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.
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 Agreement prevents or precludes Employee
from
challenging or see
