Exhibit 10.1
TERM SHEET - BRYCE ENGEL ("EXECUTIVE")
Certain capitalized terms used in this Term Sheet have the meanings set forth in
Schedule A.
POSITION: Chief Brokerage Operations Officer
AREAS OF RESPONSIBILITY: Middle Office and Clearing; Institutional
Brokerage Services; Special
Operations Support; Order Routing
Member of Senior Operating Committee (SOC)
EFFECTIVE DATE: November 1, 2007
REPORTING TO: Fred Tomczyk, Chief Operating Officer
COMPENSATION TARGETS - FY08 Base Salary $300,000
Target Bonus $500,000
Target Bonus Cash Component $350,000 (70%)
Target Bonus Equity Component $150,000 (30%)
Annual value of 2006 RSU grant $333,331
(Matures March
2009)
Total Annual Compensation Target $1,133,331
TERM: 12 months with automatic renewal for successive 12
month terms unless Executive or Company provides
the other with written notice of intent not to
renew no less than 60 days prior to expiration of
the then-current term
EARLY TERMINATION: In the event of Executive's termination during the
Term by the Company without Cause, by Executive
for Good Reason, or In Connection with a Change of
Control, Executive will be entitled to severance
benefits as follows, subject to execution of
Separation and Release of Claims Agreement:
- Severance pay equal to 18 months of Base
Salary
- Cash bonus payment equal to 1.5 times
(18 months) FY 08 Target Bonus Cash
Component
- FY 08 Target Bonus Cash Component
pro-rated to date of termination
- Continued vesting of all prior equity
grants as per normal schedule.
- COBRA coverage for 18 months; employer
portion of premiums paid by TDA for
first 12 months
If the Company reasonably determines that Code
Section 409A will result in the imposition of
additional tax to an earlier payment of any
severance or other benefits otherwise due to
Executive on or within the 6 month period
following Executive's termination, the severance
benefits will accrue during such 6 month period
and will become payable in a lump sum payment on
the date 6 months and 1 day following the date of
Executive's termination. All subsequent payments,
if any, will be payable as provided above. Any
severance payments will be subject to applicable
withholdings.
CONTINUING OBLIGATIONS: Executive to remain bound by obligations of
Non-Competition and Non-Solicitation for the 12
month period following termination of employment
for any reason
Nothing herein is intended to alter the "at-will" nature of Executive's
employment.
AGREED AND ACCEPTED: Bryce Engel Fred Tomczyk
/s/ Bryce Engel /s/ Fred Tomczyk
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Date Date
November 15, 2007 November 20, 2007
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SCHEDULE A
CERTAIN DEFINITIONS
As used in this Term Sheet, and unless the context requires a different
meaning, the following terms, when capitalized, have the meaning indicated:
"Base Salary" means Executive's annual rate of base salary during the Term.
"Cause" means (i) the failure by Executive to substantially perform his
duties, other than due to illness, injury or disability, which failure continues
for ten days following receipt of notice from the Company specifying such
failure; (ii) the willful engaging by the Executive in conduct which is
materially injurious to the Company, monetarily or otherwise; (iii) misconduct
involving serious moral turpitude to the extent that in the reasonable judgment
of the Company, Executive's credibility or reputation no longer conforms to the
standard of the Company's executives; or (iv) Executive's breach of any
restrictive covenants to which he is subject.
"Change of Control" shall have the meaning set forth in the LTIP.
"Code" mean the Internal Revenue Code of 1986, as amended.
"Company" means TD AMERITRADE Holding Corp. or any of its wholly-owned
subsidiaries.
"Good Reason" means (i) Executive is asked to report to a COO other than
Fred Tomczyk; (ii) Executive is no longer a member of the SOC and is not offered
a position in any replacement committee of an equal level of responsibility;
provided that, in either event at the Company's discretion, the Executive
remains employed for a minimum of three months from the date of notice of
termination for Good Reason and assists in an orderly transition of duties.
"In Connection with a Change of Control" means a termination of Executive's
employment with the Company within 12 months following a Change of Control.
"Non-Competition" means that, for a period of 12 months following
termination of Executive's employment for any reason, Executive will not
(without the Company's express consent) 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 fro 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 by the Company or any of its
Affiliates. The term "primary businesses" is defined as an on-line brokerage
business, including active trader and long term investor client segments, and
also includes any such other business formally proposed to be conducted by the
Company during the 12 month period prior to Executive's date of termination
(collectively a "Competitive Business"). Provided that this restriction will 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 (i) the on-line brokerage business is de minimus as
compared to its core business in terms of revenue and/or resources, and (ii)
Executive's involvement with the company excludes, directly or indirectly, the
on-line brokerage business during the 12 month non-competition period.
"Non-Solicitation" means that, for a period of 12 months following
termination of Executive's employment for any reason, neither Executive nor any
business in which Executive may engage or participate in will:
(i) knowingly (A) hire, solicit for hire or attempt to hire any employee
of the Company, or (B) encourage any employee of the Company to
terminate such employment. "Employee" means current employees as well
as anyone employed by the Company within the prior 6 months from
Executive's date of termination; provided, however, that this
provision will not preclude any business in which Executive may engage
or participate in from soliciting any such employee by
means of or hiring any such employee who responds to a public
announcement by the business as long as Executive otherwise complies
with subsections (A) and (B) above; or
(ii) knowingly (A) induce any customer or vendor of the Company or of
corporations or business which directly or indirectly are controlled
by the Company to patronize any Competitive Business; (B) request or
advise any customer or vendor to withdraw, curtail or cancel such
customer's or vendor's business with the Company; or (C) 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.
In the event that any provisions of this Schedule 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.