{"id":39092,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-e-trade-group-inc-and-kathy-levinson.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-e-trade-group-inc-and-kathy-levinson","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-e-trade-group-inc-and-kathy-levinson.html","title":{"rendered":"Employment Agreement &#8211; E*Trade Group inc. and Kathy Levinson"},"content":{"rendered":"<pre>                             EMPLOYMENT AGREEMENT\n\n          This Agreement is made effective this 1st day of June, 1999 (the\n'Effective Date'), by and between E*TRADE GROUP, INC., a Delaware corporation\n('Company'), and KATHY LEVINSON ('Executive').\n\n                                  BACKGROUND\n\n          Executive is serving as President and Chief Operating Officer of\nCompany. The parties desire to enter into a formal employment agreement with\nrespect to the continued employment of Executive by Company, which shall\nautomatically become effective as of the Effective Date.\n\n                             TERMS AND CONDITIONS\n\n          In consideration of the premises and the mutual covenants and\nagreements set forth below, the parties agree as follows:\n\n          1.   Termination of Prior Agreements. Any prior agreement shall\nterminate and be of no further force and effect as of the date of this\nAgreement.\n\n          2.   Employment. Executive agrees to serve as President and Chief\nOperating Officer of Company for the term of this Agreement, subject to the\nterms set forth in this Agreement and the provisions of the Bylaws of Company.\nDuring her employment, Executive shall devote her effort and attention, on a\nfull-time basis, to the performance of the duties required of her as an\nexecutive of Company. Notwithstanding the foregoing, Executive shall be entitled\nto serve as a director on the governing boards of no more than three (3) other\nfor-profit or not-for-profit entities and to retain any compensation and\nbenefits resulting from such service, so long as such service does not unduly\ninterfere with her duties under this Agreement, and only with prior written\napproval by the Company Chairman and Chief Executive Officer.\n\n          3.   Compensation. As compensation for her services during the term of\nthis Agreement, Executive shall receive the amounts and benefits set forth in\nthis Section 3 all effective as of the Effective Date unless otherwise\nspecified:\n\n               (a)  An annual salary of $425,000 ('Base Salary') prorated for\nany partial year of employment. As soon as reasonably practicable after the\nclose of Company's current fiscal year and the close of each fiscal year\nthereafter, the Base Salary shall be subject to review by the Compensation\nCommittee of the Company's Board of Directors for increases in light of the size\nand performance of Company. The Base Salary, as adjusted in accordance with this\nsubsection (a), shall remain in effect unless and until it is increased in\naccordance with this subsection (a). Executive's salary shall be payable\nsemimonthly or in accordance with Company's regular payroll practices in effect\nfrom time to time for officers of her level in Company.\n\n \n          (b)  Participation in Company's TQI bonus plan up to a maximum\npotential bonus of 200% of 80% of then-current Base Salary.\n\n          (c)  Participation in the employee benefit plans maintained by Company\nand in other benefits provided by Company to senior executives, including\nretirement and 401(k) plans, deferred compensation, medical and dental, annual\nvacation, paid holidays, sick leave, and similar benefits, which are subject to\nchange from time to time at the reasonable discretion of Company.\n\n          (d)  Reimbursement for financial counseling not to exceed $20,000 per\nyear and for annual physical examinations not to exceed $10,000 per year.\n\n          (e)  It is acknowledged that Executive has received option grants in\naccordance with the enclosed schedule. Company agrees that there will be no\nchange made in any Stock Option during the term of Executive's employment\nhereunder which adversely affects Executive's rights as established by the\nforegoing documents, without the prior written consent of Executive.\n\n          (f)  Lease of automobile for company use, of a mutually agreeable make\nand model of a value not to exceed $50,000, and reimbursement of reasonable\noperating expense.\n\n          (g)  Reimbursement of all reasonable business-related expenses,\nincluding without limitation expenses related to travel conducted pursuant to\nCompany's travel policies.\n\n          (h)  Reimbursement for the reasonable maintenance costs of a\ncomprehensive security and monitoring system installed in the Executive's\nprimary residence.\n\n     4.   Term. The term of this Agreement and the termination rights are as\nfollows:\n\n          (a)  This Agreement and Executive's employment under this Agreement\nshall be effective as of the Effective Date and shall continue for a term ending\non May 31, 2003 (the 'Initial Term').\n\n          (b)  This Agreement and Executive's employment may be terminated by\neither party prior to the end of the Initial Term (or any renewal period) upon\n30 days' prior written notice to the other party, provided that, in the event of\nsuch termination, Company shall be obligated to make the payments and provide\nthe benefits described in Section 5 below.\n\n     5.   Termination Payments. Upon termination of Executive's employment,\nCompany shall pay to Executive, within three business days after the end of the\n30-day notice period provided in Section 4 above, a payment in cash equal to\nsubsection (a) of this Section 5, and shall for the period or at the time\nspecified provide the other benefits described in subsection (b) of this Section\n5 if Executive's employment is terminated by Company, other than for Cause,\nwithin three years after any 'Change in Control' of Company as defined in\nsubsection (d) of this Section 5, or at the request of or pursuant to an\nagreement with a third party who has taken steps\n\n                                     Page 2\n\n \nreasonably calculated to effect a Change in Control, or otherwise in connection\nwith or in anticipation of a Change in Control.\n\n          (a)  The payment shall be equal to eighteen (18) months of Executive's\ncurrent Total Annual Compensation as defined in subsection (d) of this Section\n5.\n\n          (b)  In addition to the amount payable to Executive under subsection\n(a) of this Section 5, upon termination of Executive for any reason the health\ncare (including medical and dental) and life insurance benefits coverage\nbenefits provided to Executive at her date of termination shall be continued at\nthe same level and in the same manner as if her employment had not terminated\n(subject to the customary changes in such coverages if Executive reaches age 65\nor similar events), together with the benefits described in subsections (d), (f)\nand (g) of Section 3 beginning on the date of such termination and ending on the\nlater of: (a) the end of the term of this Agreement or (b) the date eighteen\n(18) months following the date of the Executive's termination, followed by COBRA\nelection rights. Any additional coverages Executive had at termination,\nincluding dependent coverage, will also be continued for such period on the same\nterms. Any costs Executive was paying for such coverages at the time of\ntermination shall continue to be paid by Executive. If the terms of any benefit\nplan referred to in this section do not permit continued participation by\nExecutive, then Company will arrange for other coverage providing substantially\nsimilar benefits at the same contribution level of Executive.\n\n          (c)  The Company may terminate the Employee's employment for\nDisability by giving the Employee six months' advance notice in writing.\nDisability is defined in subsection (d)(vi) of this Section 5. Upon the\neffective date of a termination for Disability, the Company shall pay to the\nExecutive the payment provided under subsection (a) of this Section 5. In the\nevent of disability, the Executive's rights under the benefit plans of the\nCompany shall be determined under the provisions of those plans.\n\n          (d)  For purposes of this Agreement, the following definitions shall\napply:\n\n               (i)    The 'Board' shall mean the Board of Directors of Company.\n\n               (ii)   The 'Incumbent Board' shall mean the members of the Board\nas of the date of this Agreement and any person becoming a member of the Board\nhereafter whose election, or nomination for election by Company's shareholders,\nwas approved by a vote of at least a majority of the directors then comprising\nthe Incumbent Board (other than an election or nomination of an individual whose\ninitial assumption of office is in connection with an actual or threatened\nelection contest relating to the election of the directors of Company).\n\n               (iii)  'Change in Control' shall mean:\n\n                         (A)  The acquisition (other than from Company) by any\nperson, entity or 'group,' within the meaning of Section 13(d)(3) or 14(d)(2) of\nthe Exchange Act (excluding, for this purpose, any employee benefit plan of\nCompany or its subsidiaries which acquires beneficial ownership of voting\nsecurities of Company) of beneficial ownership (within the meaning of Rule 13d-3\npromulgated under the Exchange Act) of 50% or more of either the\n\n                                     Page 3\n\n \nthen outstanding shares of Common Stock or the combined voting power of\nCompany's then outstanding voting securities entitled to vote generally in the\nelection of directors; or\n\n                         (B)  The failure for any reason of individuals who\nconstitute the Incumbent Board to continue to constitute at least a majority of\nthe Board; or\n\n                          (C)  Approval by the stockholders of Company of a\nreorganization, merger, consolidation, in each case, with respect to which the\nshares of Company voting stock outstanding immediately prior to such\nreorganization, merger or consolidation do not constitute or become exchanged\nfor or converted into more than 50% of the combined voting power entitled to\nvote generally in the election of directors of the reorganized, merged or\nconsolidated company's then outstanding voting securities, or a liquidation or\ndissolution of Company or of the sale of all or substantially all of the assets\nof Company.\n\n                    (iv)  'Current Total Annual Compensation' shall be the\ngreater of (i) Executive's Base Salary for the calendar year in which her\nemployment terminates or (ii) such salary for the calendar year prior to the\nyear of such termination.\n\n                    (v)   'Disability' shall mean the total and permanent\ninability of Executive due to illness, accident or other physical or mental\nincapacity to perform the usual duties of her employment under this Agreement,\nas determined by a physician selected by Company and acceptable to Executive or\nExecutive's legal representative (which agreement as to acceptability shall not\nbe unreasonably withheld).\n\n                    (vi)  The 'Exchange Act' shall mean the Securities Exchange\nAct of 1934, as amended.\n\n                    (vii) 'Cause' shall be defined solely as (i) Executive's\ndefalcation or misappropriation of funds or property of the Company, or the\ncommission of any other illegal act in the course of her employment with Company\nwhich, in the reasonable judgment of the Board of Directors, has a material\nadverse financial effect on the Company or on Executive's ongoing abilities to\ncarry out her duties under this Agreement; (ii) Executive's conviction of a\nfelony or of any crime involving moral turpitude, and affirmance of such\nconviction following the exhaustion of any appeals; (iii) refusal of Executive\nto substantially perform all of her duties and responsibilities, or Executive's\npersistent neglect of duty or chronic unapproved absenteeism (other than for a\ntemporary or permanent Disability), which remains uncured following thirty days\nafter written notice of such alleged Cause by the Board of Directors; or (iv)\nany material and substantial breach by Executive of other terms and conditions\nof this Agreement, which, in the reasonable judgment of the Board of Directors,\nhas a material adverse financial effect on the Company or on Executive's ongoing\nabilities to carry out her duties under this Agreement and which remains uncured\nfollowing thirty days after written notice of such alleged Cause by either the\nBoard of Directors, or Company's chairman and Chief Executive Officer.\n\n               (e)  In addition to the benefits payable under subsection (a) or\n(b) of this Section 5, Company shall pay Executive a tax equalization payment in\naccordance with this subsection. The tax equalization payment shall be in an\namount which, when added to the other amounts payable to Executive under this\nSection 5, will place Executive in the same after-tax\n\n                                     Page 4\n\n \nposition as if the excise tax penalty of Section 4999 of the Internal Revenue\nCode of 1986, as amended (the 'Code'), or any successor statute of similar\nimport, did not apply to any of the amounts payable under this Section 5\nincluding any amounts paid under this subsection (e). The amount of this tax\nequalization payment shall be determined by Company's independent accountants\nand shall be payable to Executive at the same time as the payment under\nsubsection (a) of this Section 5.\n\n          6.   Non-Competition. Executive agrees that during the Initial Term\nExecutive shall not, directly or indirectly, engage in any business or activity\nor render any services or provide any advice, whether as an employee,\nconsultant, partner, principal, agent, or representative or in any other\nindividual, corporate or representative capacity, to any business, entity or\nperson engaged in the brokerage business, including without limitation any\nbusiness, entity or person engaged in the electronic brokerage business, in any\ngeographic area in which Company engages in its business or reasonably\ncontemplates engaging in its business during the Executive's employment with\nCompany. Notwithstanding the foregoing, Executive may own, directly or\nindirectly, up to one percent (1%) of any class of 'publicly-traded securities'\nof any business or entity engaged in the brokerage business. For the purposes of\nthis Section 6, 'publicly-traded securities' shall mean securities that are\ntraded on a national securities exchange or listed on the Nasdaq National\nMarket.\n\n          7.   Assignment; Successors. Any assignment of this Agreement shall be\nin accordance with the following:\n\n               (a)  The rights and benefits of Executive under this Agreement,\nother than accrued and unpaid amounts due hereunder, are personal to her and\nshall not be assignable by Executive, except with the prior written consent of\nCompany.\n\n               (b)  Subject to the provisions of subsection (c) of this Section\n7, this Agreement shall not be assignable by Company, provided that with the\nconsent of Executive, Company may assign this Agreement to another corporation\nwholly owned by it either directly or through one or more other corporations, or\nto any corporate successor of Company or any such corporation.\n\n               (c)  Any business entity succeeding to substantially all of the\nbusiness of Company, by purchase, merger, consolidation, sale of assets or\notherwise, shall be bound by and shall adopt and assume this Agreement, and\nCompany shall require the assumption of this Agreement by such successor as a\ncondition to such purchase, merger, consolidation, sale of assets or other\nsimilar transaction.\n\n          8.   Notices. Any notice or other communications under this Agreement\nshall be in writing, signed by the party making the same, and shall be delivered\npersonally or sent by certified or registered mail, postage prepaid, addressed\nas follows:\n\n          If to Executive:    Ms. Kathy Levinson\n                              c\/o E*Trade Group, Inc.\n                              4500 Bohannon Drive\n                              Menlo Park, California 94025\n\n                                     Page 5\n\n \n          If to Company:      The Board of Directors\n                              c\/o E*Trade Group, Inc.\n                              4500 Bohannon Drive\n                              Menlo Park, California 94025\n\nor such other address or agent as may hereafter be designated by either party\nhereto. All such notices shall be deemed given on the date personally delivered\nor mailed.\n\n          9.   Full Settlement and Legal Expenses. Company's obligation to make\nthe payments provided for in this Agreement and otherwise to perform its\nobligations hereunder shall not be affected by any set-off, counter-claim,\nrecoupment, defense or other claim, right or action which Company may have\nagainst Executive or others. In no event shall Executive be obligated to seek\nother employment or take any other action by way of mitigation of the amounts\npayable to Executive under any of the provisions of this Agreement. The\nprevailing party shall be entitled to recover all legal fees and expenses which\nsuch party may reasonably incur as a result of any legal proceeding relating to\nthe validity, enforceability, or breach of, or liability under, any provision of\nthis Agreement or any guarantee of performance (including as a result of any\ncontest by Executive about the amount of any payment pursuant to Section 5 of\nthis Agreement), plus in each case interest at the applicable Federal Rate\nprovided for in Section 7872(f)(2) of the Code.\n\n          10.  Governing Law. This Agreement shall be interpreted and enforced\nin accordance with the laws of the State of California, except that any\narbitration shall be governed by the Federal Arbitration Act.\n\n          11.  Severability. Whenever possible, each provision of this Agreement\nshall be interpreted in such manner as to be effective and valid, but if any one\nor more of the provisions contained in this Agreement shall be invalid, illegal\nor unenforceable in any respect for any reason, the validity, legality and\nenforceability of any such provisions in every other respect and of the\nremaining provisions of this Agreement shall not be in any way impaired.\n\n          12.  Entire Agreement. This Agreement (including all Exhibits)\ncontains the entire agreement of the parties with respect to the subject matter\ncontained in this Agreement. There are no restrictions, promises, covenants, or\nundertakings between Company and Executive, other than those expressly set forth\nin this Agreement. This Agreement supersedes all prior agreements and\nunderstandings between the parties. This Agreement may not be amended or\nmodified except in writing executed by the parties.\n\n          13.  Arbitration. Any controversy or claim arising out of or relating\nto this Agreement shall be settled by arbitration in accordance with the\nAmerican Arbitration Association's National Rules for the Resolution of\nEmployment Disputes, and judgment upon the award rendered by the arbitrator may\nbe entered in any court having jurisdiction. Any arbitration shall be held in\nSanta Clara County, California, unless otherwise agreed in writing by the\nparties.\n\n                                     Page 6\n\n \n          In Witness Whereof, the undersigned directors of the Company, have\nexecuted this Agreement as of the day and year first above written.\n\n\n                                    E*TRADE GROUP, INC.\n\n                                    [CORPORATE SEAL]\n\n\n                                    \/s\/ William A. Porter\n                                    --------------------------------------------\n                                    William A. Porter, Chairman Emeritus\n\n\n                                    Attest: Secretary  \/s\/ [ILLEGIBLE]^^\n                                                       -------------------------\n\n\n                                    EXECUTIVE\n\n\n                                   \/s\/ Kathy Levinson\n                                   ---------------------------------------------\n                                   Kathy Levinson\n\n\n                                   Witnesseth:\n\n\n                                   \/s\/ [ILLEGIBLE]^^\n                                   ---------------------------------------------\n\n                                       7\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7386],"corporate_contracts_industries":[],"corporate_contracts_types":[9539],"class_list":["post-39092","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-e-trade-group-inc","corporate_contracts_types-compensation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39092","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39092"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39092"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39092"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39092"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}